Learning from informed consent litigation to improve practices: A systematic review

Abstract

Objective: To describe the reasons that lead judges to qualify malpractice as a lack of information, then rule in favour or not of the health professional (HP).

Methods: We conducted a systematic review of case law relating to the breach of disclosure obligations over a ten-year period from 2010 to 2020. We used 3 legal databases: Légifrance, Dalloz and Lexis 360, all identified as the most exhaustive.

Results: Of the 514 law cases included: judges found malpractice owing to lack of information in 377 (73.3%) cases. Among the latter, malpractices were lack of risk information (N = 257, 68.2%), lack of proof of information (N = 243, 64.5%) and/or lack of information on therapeutic alternatives (N = 49, 13.0%). These malpractices resulted in a conviction of the HP in 268 (71.1%) of the cases.

Conclusion: Case law is an important source of information for improving the quality of HP, lawyers, and judges' practices.

Practice implications: This review suggests that.

Keywords: Informed consent; Litigation; Malpractice claims; Patient’s right; Quality of care.