To what extent should a doctor inform a patient before a high-risk surgery?

About the Case

The case concerns an incident in which a minor patient with a congenital heart defect underwent elective surgery, after which he suffered severe and irreversible nervous system dysfunction. The claimant sought compensation from the Medical Risk Fund, and the regional court awarded the maximum possible amount of compensation. One of the bases for the district court’s conclusions was the finding that informed consent had not been obtained from the patient (or his parents as his legal representatives) prior to the surgery. The authorities that intervened in the case on behalf of the state also challenged this assessment in their appeals, but the Senate refused to initiate cassation proceedings.

The Court’s Findings

The Senate emphasized that a formally signed consent form is not sufficient in and of itself—what is decisive is the extent to which the patient or his or her legal representatives were actually informed about the risks, in specific and detailed terms. In this case, it was found that even the medical personnel had not anticipated the risk that ultimately materialized—which indicated insufficient information had been provided.

The Senate reiterated that consent to medical treatment must be based on timely information regarding the purpose, risks, consequences, and methods of the treatment. The more serious and risky the proposed treatment, the more extensive the discussion with the patient must be, so that the patient or his or her representative can objectively understand the possible consequences. A general statement that “any surgery carries risks” is insufficient—otherwise, consent may be given rashly.

Crucially, the Senate clarified that performing surgery without informed consent is not merely one of several factors affecting the amount of compensation for damages. It in and of itself renders the medical treatment unjustified, and therefore there is no justification for the consequences it causes—including those that might have occurred even if the surgery had been performed properly.

Practical Significance

This finding is important for anyone who must make a decision about a risky medical treatment—both patients and parents deciding on treatment for their child. It serves as a reminder that the right to comprehensive, understandable information is not a mere formality, and signing a standard form does not in itself prove that consent was informed. For medical institutions, this highlights the need to ensure—and be able to demonstrate—a genuine, rather than merely formal, patient information process—as the absence of such a process can significantly impact liability for the consequences of medical treatment.

If you have questions about patient rights, informed consent, or compensation for harm caused during medical treatment, please contact our office—we will help you assess your situation.