When you walk into a doctor's office or hospital, you're putting an enormous amount of trust in the people caring for you. You expect them to explain what they're planning to do, why they're recommending it, and what could potentially go wrong. That conversation isn't just good bedside manner. It's a legal requirement, and when it doesn't happen the way it should, the consequences can fundamentally change your life.
If a healthcare provider failed to properly inform you about a medical procedure and you were injured as a result, you might have grounds for a lawsuit. But these cases aren't as straightforward as many people think. New York law is very specific about when you can sue for lack of informed consent, and understanding those specifics can help you figure out whether you have a case worth pursuing.
What Informed Consent Really Means in Medical Treatment
Informed consent is more than just signing a form before surgery. At its core, it's about making sure you understand what's about to happen to your body and having enough information to decide whether you want to go through with it. Your doctor is supposed to explain the procedure, tell you about other options that might work, describe what could go wrong, and give you a realistic picture of what you can expect afterward.
New York law defines lack of informed consent as a failure to disclose alternatives, risks, and benefits in a way that allows you to make a knowledgeable decision. The law measures this against what a reasonable doctor in similar circumstances would have told you. In other words, your doctor doesn't get to decide on their own what you need to know. There's a professional standard they're expected to meet, and falling short of that standard can lead to legal liability.
But here's where it gets complicated. Even if your doctor didn't explain things properly, that alone doesn't automatically give you the right to sue. You also have to show that a reasonably prudent person in your shoes would not have agreed to the treatment if they'd been fully informed. And on top of that, you need to prove that this lack of information directly caused your injury. The harm you suffered has to be one of the risks that should have been disclosed in the first place.
Can You Sue a Doctor for Not Explaining the Risks?
Yes, but only in specific situations defined by New York's Public Health Law Section 2805-d. This statute limits informed consent lawsuits to non-emergency procedures and treatments that involve some kind of invasion or disruption of your body. Think surgeries, biopsies, invasive diagnostic tests, and other procedures where something is being done to your physical body beyond a simple visual or physical examination.
The law covers medical doctors, dentists, and podiatrists. If you went in for a planned surgery and your surgeon didn't explain the risk of nerve damage, and that's exactly what happened to you, that's the type of situation where an informed consent claim might apply. The same goes for a dental procedure where you weren't warned about potential complications, or a diagnostic test where the risks weren't adequately disclosed.
Emergency situations are treated differently. If you were rushed into surgery because your life was in danger, the law recognizes that there may not have been time for a detailed conversation about every possible risk. When immediate treatment is necessary to prevent death or serious harm, doctors can proceed without the same level of informed consent that would be required for a non-urgent planned procedure.
The law also doesn't cover non-invasive treatments or routine physical exams. If your injury didn't result from a procedure that involved breaking the skin, inserting instruments, or otherwise physically invading your body, an informed consent claim under this statute probably won't work. You might still have a regular medical malpractice case if your doctor's treatment was negligent, but it wouldn't be framed as a lack of informed consent issue under this law.
What You Have to Prove in an Informed Consent Lawsuit
Winning one of these cases requires proving three distinct elements, and all three have to be present:
First, you need to show that your healthcare provider failed to disclose the alternatives, risks, and benefits that a reasonable practitioner would have disclosed under the same circumstances. This almost always requires bringing in medical experts who can testify about what the standard disclosure should have been for your particular procedure or treatment.
Second, you have to prove that a reasonably prudent person in your position would not have gone through with the procedure if they'd been fully informed. Notice the wording here. It's not just about what you personally claim you would have decided. New York uses what's called an objective standard, meaning the question is what a hypothetical reasonable person would do, not just what you say you would have chosen. This makes these cases harder to win than they are in some other states that focus only on what the individual patient would have decided.
Third, you must establish that the lack of informed consent was a proximate cause of your injury. In practical terms, this means the risk that actually occurred and harmed you was one of the material risks that should have been disclosed. If your doctor failed to mention the possibility of infection but you were injured by something completely different, like an allergic reaction to anesthesia, the lack of disclosure about infection wouldn't be the cause of your harm.
Proving all of this requires thorough documentation. The consent forms you signed, your medical records, notes from appointments, and any conversations you had with your doctor all become crucial evidence. Most people in this situation need to work with both an experienced attorney and medical experts who can explain what should have been disclosed and whether your doctor's explanations met the legal standard.
What Defenses Can Doctors Use in These Cases?
Even when a doctor didn't fully explain the risks, New York law gives healthcare providers several ways to defend themselves. Understanding these defenses helps explain why not every failure to disclose leads to a successful lawsuit, and why some cases that seem strong at first don't end up going anywhere.
One common defense is that the risk was either too commonly understood or too remote to require specific disclosure. If the risk was something most people already know about, or if it was so unlikely that a reasonable doctor wouldn't typically mention it, that can defeat a claim. Everyone understands that surgery involves some level of pain and discomfort, for example, so doctors don't have to spell that out in detail.
Another defense involves situations where full disclosure would have seriously harmed your condition. If a doctor can show that explaining certain risks would have caused you significant psychological distress or would have interfered with necessary treatment, they might have a valid defense for limiting what they told you. Courts are careful with this defense because it could otherwise swallow the whole informed consent requirement, but it exists for situations where disclosure itself would cause real harm.
Doctors can also argue that even if you had been fully informed, a reasonably prudent person in your position would still have chosen to go ahead with the procedure. If the treatment was medically necessary and the alternatives were significantly worse or didn't really exist, this argument can break the legal connection between the lack of disclosure and your injury.
Emergency situations provide a strong defense. If there was no time to obtain detailed consent because immediate treatment was necessary to save your life or prevent serious harm, the law recognizes that informed consent simply may not have been feasible. Similarly, if you were unconscious and no family member or legal representative was available to consent on your behalf, doctors can proceed with necessary treatment without facing liability for lack of informed consent under those circumstances.
Does Signing a Consent Form Prevent You from Suing?
A lot of people assume that if they signed paperwork before a procedure, they've given up their right to sue. That's not how it works. Signing a consent form is one piece of the puzzle, but it doesn't automatically shield a healthcare provider from liability for lack of informed consent.
The real question is whether the consent you gave was truly informed. If you signed a form that didn't adequately describe the material risks, benefits, and alternatives, or if your doctor didn't take the time to discuss those things with you in a way you could actually understand, the form itself may not be enough to defeat your claim.
Courts understand that consent forms are often dense, technical documents filled with medical terminology that patients sign without fully grasping what they're agreeing to. The legal standard isn't just about whether you put your signature on paper. It's about whether you were given the information you needed to make a meaningful choice about your own medical care.
It's also important to understand that signing a consent form doesn't waive your right to sue if the procedure was performed negligently. Informed consent is about whether you agreed to the procedure with adequate knowledge of the risks. Medical malpractice is about whether the doctor performed the procedure competently. These are separate issues. You can't consent to negligence. If your surgeon was careless during the operation and caused an injury that wouldn't have happened with proper technique, you can still sue for malpractice even if you signed a consent form beforehand.
How Is This Different from a Regular Malpractice Case?
Lack of informed consent is a specific type of medical malpractice claim, but it's distinct from what most people picture when they think about malpractice. A typical malpractice case focuses on whether the doctor's treatment fell below the accepted standard of care. Did the surgeon make a mistake during the operation? Did the doctor misdiagnose your condition? Did they prescribe the wrong medication or the wrong dosage?
An informed consent claim focuses on something different. It's not about whether the procedure was performed correctly. It's about whether you were given enough information to decide whether to have the procedure in the first place. The doctor could have done everything technically right during the surgery, but if they failed to warn you about a serious risk that ended up happening, you might still have a valid claim for lack of informed consent.
In many cases, patients bring both types of claims at the same time. You might argue that your doctor failed to warn you about certain risks and also performed the procedure negligently. These are separate legal theories that require proving different things, but they can coexist in the same lawsuit.
The distinction matters because what you need to prove is different. In a standard malpractice case, you're focusing on whether the doctor's actions during treatment met the standard of care. In an informed consent case, you're focusing on whether the doctor's disclosures before treatment met the standard for adequate information. Both require expert testimony, but the experts are testifying about different phases of the medical care you received.
What About Informed Consent in Medical Research?
If you were injured while participating in a medical research study, informed consent takes on additional importance and comes with extra legal protections. New York has specific laws governing human research that require written informed consent before anyone can participate in a study. These research-specific consent requirements are separate from the informed consent rules that apply to regular medical treatment.
Research consent must be voluntary and must include detailed information about the purpose of the study, exactly what procedures will be performed, what risks and benefits are involved, and your right to withdraw from the study at any time without penalty. Institutional review boards oversee this process to make sure researchers are protecting the rights and welfare of study participants.
If you were injured during a research study and the researchers failed to adequately inform you about the risks, you may have claims under both general malpractice principles and specific research-related consent violations. The exact nature of those claims will depend on factors like whether the study was federally funded, where it took place, and how it was structured, but the core principle remains the same. You have a right to know what you're agreeing to, and researchers have a legal duty to provide that information in a clear and complete way.
The standards for research consent are often more stringent than for ordinary medical treatment because research participants are being exposed to risks that may not directly benefit them personally. The law recognizes that people volunteering for medical research deserve especially strong protections, and that includes very clear and comprehensive informed consent.
What Steps Should You Take If You Think You Have a Case?
If you believe you were injured because a healthcare provider failed to adequately inform you about a procedure, start by gathering as much information as you can. Get copies of all your medical records, including any consent forms you signed, notes from your appointments, documentation of the procedure itself, and records of what happened afterward and how your injury was treated.
Think carefully about what was and wasn't discussed with you before the procedure. Did your doctor explain what could go wrong? Did they mention other treatment options? Did they give you a chance to ask questions, and did they answer those questions in a way you could understand? Write down everything you remember about those conversations while the details are still fresh in your mind. Even small details can matter significantly later.
Understanding the basic elements of a lack of informed consent claim will help you evaluate whether pursuing a case makes sense. Ask yourself these questions. Was the procedure non-emergency and invasive? Were material risks and alternatives fully explained to you? Would a reasonable person have declined the procedure if they'd been told the complete picture? Did the undisclosed risk actually occur and cause your injury?
These are complex questions that usually can't be answered just by thinking them through on your own. You need to look at the medical records, often with the help of medical experts who can explain what the standard of disclosure should have been for your particular situation. That's why most people in this situation reach out to an attorney who handles medical malpractice cases.
An experienced lawyer can review your records, consult with medical experts, and help you understand whether the law supports your claim and what evidence you'll need to prove it. They can also explain the practical realities of pursuing a case, including how long it might take, what it will involve, and what kind of outcome you might reasonably expect.
Keep in mind that New York's statute of limitations for medical malpractice, including informed consent claims, is generally two and a half years from the date of the malpractice or from the end of continuous treatment for the same condition. There are some exceptions to this rule, but time limits are real and they matter. Waiting too long can mean losing your right to sue entirely, no matter how strong your case might be.
Were You Subjected to Medical Procedures Without Informed Consent?
Talk With a New York Personal Injury Lawyer at the Porter Law Group. Free, no-obligation, confidential.
Summing It Up
You can sue for lack of informed consent in New York, but only when specific legal requirements are met. The procedure must have been non-emergency and invasive, your doctor must have failed to disclose material risks and alternatives that a reasonable practitioner would have disclosed, a reasonable person in your position would not have consented if fully informed, and that failure to inform must have directly caused your injury.
These cases require proving more than just that your doctor didn't tell you everything. You have to show that the missing information would have changed the decision a reasonable person would make, and that you were harmed as a direct result. The law tries to balance respect for your right to make decisions about your own body with recognition that doctors sometimes face difficult judgment calls about how much information to provide and when.
If you're dealing with an injury that might have been prevented if you'd known the full risks, you deserve to have your situation evaluated by someone who understands these laws and how they apply to medical cases. The harm you've suffered is real, and so is your right to hold healthcare providers accountable when they fail to respect your ability to make informed decisions about your own medical care.
