Informed Consent Violation Complaint

INFORMED CONSENT VIOLATION COMPLAINT

IN THE [____] COURT OF [________________________________]

[________________________________] COUNTY

PLAINTIFF:
[________________________________]

v.

DEFENDANT(S):
[________________________________], M.D.
[________________________________] HOSPITAL/MEDICAL FACILITY

Case No.: [________________________________]

COMPLAINT FOR LACK OF INFORMED CONSENT/BATTERY

COMES NOW the Plaintiff, [________________________________] ("Plaintiff"), by and through undersigned counsel, and for this Complaint against Defendants, states and alleges as follows:

I. PARTIES

A. Plaintiff

1. Plaintiff, [________________________________], is an individual residing at [________________________________], City of [________________________________], County of [________________________________], State of [________________________________].

B. Physician Defendant

2. Defendant, [________________________________], M.D. ("Physician"), is a licensed physician in the State of [________________________________], License No. [________________________________], practicing at [________________________________].

3. Physician specializes in [________________________________].

C. Hospital/Medical Facility Defendant

4. Defendant, [________________________________] ("Hospital"), is a healthcare facility located at [________________________________], licensed in the State of [________________________________].

5. At all relevant times, Physician was [☐ an employee ☐ an agent ☐ affiliated with] Hospital.

II. JURISDICTION AND VENUE

6. This Court has jurisdiction over this action pursuant to [________________________________].

7. Venue is proper because the medical treatment occurred in this county.

8. The amount in controversy exceeds the jurisdictional minimum.

III. FACTUAL ALLEGATIONS

A. The Medical Condition and Consultation

9. On or about [__/__/____], Plaintiff consulted with Physician regarding [________________________________].

10. Physician recommended the following treatment/procedure:
    [________________________________]
    [________________________________]

11. The stated purpose of the treatment/procedure was:
    [________________________________]

B. The Informed Consent Process

12. Prior to the treatment/procedure, Physician [☐ did ☐ did not] discuss the following with Plaintiff:

Disclosure of Risks

☐ The nature of the proposed treatment/procedure
☐ The material risks of the treatment/procedure
☐ The probability/likelihood of risks occurring
☐ The potential benefits of the treatment/procedure
☐ Alternative treatments/procedures available
☐ The risks of alternative treatments
☐ The option of no treatment
☐ The risks of declining treatment
☐ The physician's experience with the procedure

13. Plaintiff [☐ did ☐ did not] sign a written consent form.

14. The consent form [☐ was ☐ was not] explained to Plaintiff.

C. Information That Was NOT Disclosed

15. Physician failed to disclose the following material information to Plaintiff:

☐ Risk of: [________________________________]
☐ Risk of: [________________________________]
☐ Risk of: [________________________________]
☐ Alternative treatment of: [________________________________]
☐ Alternative treatment of: [________________________________]
☐ Physician's lack of experience with procedure
☐ Success rate/failure rate of procedure
☐ Other: [________________________________]

16. The undisclosed risk(s) that materialized was/were:
    [________________________________]
    [________________________________]

D. The Treatment/Procedure

17. On [__/__/____], the treatment/procedure was performed at [________________________________].

18. The treatment/procedure performed was:
    [________________________________]

19. [If applicable:] The treatment/procedure performed differed from what was consented to:
    ☐ Consented procedure: [________________________________]
    ☐ Actual procedure performed: [________________________________]

E. The Injury

20. As a result of the treatment/procedure, Plaintiff suffered:
    [________________________________]
    [________________________________]

21. This injury was a known risk of the procedure that was not disclosed to Plaintiff.

F. Plaintiff's Decision-Making

22. Had Plaintiff been properly informed of the undisclosed risks and alternatives, Plaintiff would NOT have consented to the treatment/procedure because:
    [________________________________]
    [________________________________]

23. A reasonable person in Plaintiff's position would NOT have consented to the treatment/procedure if properly informed of:
    [________________________________]
    [________________________________]

IV. STANDARD FOR INFORMED CONSENT

24. Under the doctrine of informed consent, a physician must disclose to a patient:

a. The diagnosis and nature of the patient's condition;

b. The nature and purpose of the proposed treatment;

c. The material risks and consequences of the proposed treatment;

d. The probability that the proposed treatment will be successful;

e. The feasible alternatives to the proposed treatment;

f. The risks of alternative treatments;

g. The prognosis if no treatment is given.

25. The standard for disclosure in this jurisdiction is:

☐ Physician Standard (Professional Standard): What a reasonable physician would disclose under similar circumstances.

☐ Patient Standard (Reasonable Patient Standard): What a reasonable patient would want to know to make an informed decision.

26. A risk is "material" and must be disclosed when:

☐ A reasonable person in the patient's position would likely attach significance to the risk in deciding whether to consent to the treatment.

☐ The physician knows or should know that the particular patient would attach significance to the risk.

V. BREACH OF DUTY TO OBTAIN INFORMED CONSENT

27. Physician breached the duty to obtain informed consent by:

☐ Failing to disclose material risks of the procedure
☐ Failing to disclose alternative treatments
☐ Failing to disclose the option of no treatment
☐ Misrepresenting the risks of the procedure
☐ Minimizing the risks of the procedure
☐ Failing to explain the consent form
☐ Obtaining consent when patient was incapacitated
☐ Obtaining consent through coercion or duress
☐ Failing to allow adequate time for patient to consider options
☐ Failing to answer patient's questions adequately
☐ Performing a different procedure than consented to
☐ Other: [________________________________]

28. Specifically, Physician breached the duty by:
    [________________________________]
    [________________________________]

VI. CAUSATION

29. The undisclosed risk that materialized caused Plaintiff's injuries.

30. Had Plaintiff been properly informed:

Subjective Standard:
☐ Plaintiff would not have consented to the procedure.

Objective Standard:
☐ A reasonable person in Plaintiff's position would not have consented to the procedure.

31. Plaintiff's injuries were directly caused by the failure to obtain informed consent because Plaintiff underwent a procedure that Plaintiff would not have undergone if properly informed.

VII. DAMAGES

Economic Damages

☐ Past medical expenses: $[________________________________]
☐ Future medical expenses: $[________________________________]
☐ Past lost wages: $[________________________________]
☐ Future lost earning capacity: $[________________________________]
☐ Other economic damages: $[________________________________]

Non-Economic Damages

☐ Physical pain and suffering
☐ Mental anguish and emotional distress
☐ Violation of bodily autonomy
☐ Loss of enjoyment of life
☐ Physical impairment
☐ Disfigurement
☐ Loss of consortium

Punitive Damages (if applicable)

32. Physician's conduct in failing to obtain informed consent was [☐ willful ☐ reckless ☐ intentional], entitling Plaintiff to punitive damages.

VIII. FIRST CAUSE OF ACTION - LACK OF INFORMED CONSENT (Negligence Theory)

33. Plaintiff incorporates by reference all preceding paragraphs.

34. A physician-patient relationship existed between Plaintiff and Physician.

35. Physician owed Plaintiff a duty to obtain informed consent before performing the treatment/procedure.

36. Physician breached that duty by failing to disclose material information as described herein.

37. Had Plaintiff been properly informed, Plaintiff would not have consented to the procedure.

38. Plaintiff suffered injuries that were a known risk of the procedure.

39. Plaintiff suffered damages as a result.

IX. SECOND CAUSE OF ACTION - MEDICAL BATTERY (if applicable)

40. Plaintiff incorporates by reference all preceding paragraphs.

41. ☐ Plaintiff did not consent to any treatment.
    ☐ The treatment performed exceeded the scope of Plaintiff's consent.
    ☐ Consent was obtained through fraud or misrepresentation.
    ☐ Consent was obtained when Plaintiff lacked capacity.

42. Physician intentionally performed the treatment/procedure on Plaintiff.

43. The treatment/procedure was a harmful or offensive touching.

44. Plaintiff did not validly consent to the touching.

45. Plaintiff suffered damages as a result.

X. THIRD CAUSE OF ACTION - VICARIOUS LIABILITY (Against Hospital)

46. Plaintiff incorporates by reference all preceding paragraphs.

47. Hospital is vicariously liable for Physician's failure to obtain informed consent.

48. Hospital is also directly liable for:
    ☐ Failing to ensure informed consent procedures were followed
    ☐ Providing defective consent forms
    ☐ Other: [________________________________]

XI. FOURTH CAUSE OF ACTION - NEGLIGENT MISREPRESENTATION (if applicable)

49. Plaintiff incorporates by reference all preceding paragraphs.

50. Physician made representations to Plaintiff regarding the risks and benefits of the procedure.

51. Those representations were false or misleading in that:
    [________________________________]

52. Plaintiff relied on those representations in deciding to consent.

53. Plaintiff suffered damages as a result.

XII. DEFENSES ANTICIPATED AND REBUTTED

54. ☐ Emergency Exception: This was NOT an emergency situation requiring immediate treatment without consent.

55. ☐ Therapeutic Privilege: Physician cannot claim therapeutic privilege because disclosure would not have caused Plaintiff to become so ill or distraught as to prevent rational decision-making.

56. ☐ Patient Knowledge: Plaintiff did NOT already know of the undisclosed risks through prior experience or common knowledge.

57. ☐ Waiver: Plaintiff did NOT knowingly waive the right to receive information about risks and alternatives.

XIII. PRE-SUIT COMPLIANCE

58. ☐ Plaintiff has complied with all applicable pre-suit requirements.
    ☐ Certificate of Merit/Affidavit attached as Exhibit [____].

59. ☐ No pre-suit requirements apply in this jurisdiction for informed consent claims.

60. ☐ Informed consent claims are not classified as medical malpractice in this jurisdiction.

XIV. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests judgment against Defendants as follows:

1. Compensatory damages in an amount to be proven at trial;

2. Special damages for medical expenses and lost wages;

3. General damages for pain, suffering, and violation of bodily autonomy;

4. Punitive damages (if warranted);

5. Pre-judgment and post-judgment interest;

6. Costs of suit;

7. Attorney's fees (if permitted);

8. Such other relief as the Court deems just.

XV. JURY DEMAND

Plaintiff hereby demands a trial by jury.

DATED: [__/__/____]

Respectfully submitted,

______________________________________
[Attorney Name]
[State Bar No.]
[Law Firm Name]
[Address]
[City, State ZIP]
[Telephone]
[Email]

Attorney for Plaintiff

VERIFICATION

STATE OF [________________________________]
COUNTY OF [________________________________]

I, [________________________________], declare under penalty of perjury that I am the Plaintiff, that I have read the foregoing Complaint, and that the facts stated are true to my knowledge.

______________________________________
[Plaintiff Signature]

DATED: [__/__/____]

INFORMED CONSENT STANDARDS BY STATE

Physician (Professional) Standard States

The physician must disclose what a reasonable physician would disclose under similar circumstances.

• Examples: Colorado, Delaware, Idaho, Nebraska, North Carolina, Tennessee, Virginia

Patient (Reasonable Patient) Standard States

The physician must disclose what a reasonable patient would want to know.

• Examples: Alaska, California, District of Columbia, Louisiana, Massachusetts, Ohio, Oklahoma, Pennsylvania, Texas, Washington

Hybrid Standard States

Courts apply varying standards or have modified rules.

Note: Check current case law in your jurisdiction, as standards may have evolved.

ELEMENTS OF INFORMED CONSENT CLAIM

Most Jurisdictions Require:

1. Physician had duty to disclose
2. Physician failed to disclose material information
3. Plaintiff would not have consented if informed (causation)
4. Plaintiff was injured by the undisclosed risk (injury)

Causation Standards:

• Subjective Test: Would this particular patient have refused?
• Objective Test: Would a reasonable patient have refused?
• Many jurisdictions use a hybrid or objective standard

EXCEPTIONS TO INFORMED CONSENT REQUIREMENT

1. Emergency: Patient is unconscious or incapacitated and treatment is immediately necessary
2. Therapeutic Privilege: Disclosure would harm the patient (narrowly construed)
3. Patient Waiver: Patient explicitly requests not to be told
4. Known Risks: Information is commonly known or already known to patient

INFORMED CONSENT VS. MEDICAL BATTERY

STATE-SPECIFIC NOTES

California: Patient standard (Cobbs v. Grant); MICRA caps may apply.

Texas: Patient standard; Tex. Civ. Prac. & Rem. Code § 74.101 sets disclosure requirements.

Florida: Pre-suit notice may be required; informed consent statute at Fla. Stat. § 766.103.

New York: Hybrid standard; Public Health Law § 2805-d governs informed consent.

This template is provided for general informational purposes only. Informed consent law varies significantly by jurisdiction. Always consult with an attorney licensed in your state before filing any legal action.