Medical Malpractice vs. Violation of “Informed Consent”

Gomez v. Sauerwein, — P.3d — (Wash. 2014)

When a doctor misdiagnoses a patient, he denies the patient important information about her actual condition. As a result, the patient becomes misinformed and may sue the doctor for violation of her entitlement to informed consent.

However, as the Washington Supreme Court recently explained, doing so would be ill-advised.

Here is why:

A doctor violates her patient’s entitlement to informed consent only when she fails to tell the patient something she knows and that “something” is material to the patient’s treatment. When a doctor is justifiably unaware of the patient’s condition (e.g., when she relies upon mistaken lab results) she commits violation at all. On the other hand, when a doctor negligently fails to obtain information pertaining to the patient’s treatment, she commits medical malpractice, as opposed to informed-consent violation. Under the first scenario, an informed-consent violation doesn’t exist. Under the second scenario, this violation is parasitic upon medical malpractice and is therefore superfluous. The patient consequently should sue the doctor for malpractice.


“When a health care provider rules out a particular diagnosis based on the patient’s clinical condition—including test results, medical history, presentation upon physical examination, and any other circumstances surrounding the patient’s condition that are available to the provider—the provider may not be liable for informed consent claims arising from the ruled out diagnosis.”