Consent to medical treatment is supposed to be informed. Florida law requires a provider to disclose the risks, the alternatives, and the nature of a procedure so that your agreement to it is a real choice rather than a signature on a form you never had a chance to understand. The idea behind the rule is simple and important: it is your body, and the decision about what is done to it belongs to you, which means you are entitled to the information a reasonable person would want before making it. When that disclosure does not happen and you are harmed by a risk you were never warned about, you may have a claim, even if the procedure itself was performed competently.
What an informed-consent claim requires
Why it is a separate kind of case
This is what makes informed consent distinct from an ordinary malpractice claim, and it is a distinction many people do not realize exists. Most medical cases ask whether the treatment fell below the standard of care, whether the surgeon’s hands, so to speak, did something wrong. An informed consent case asks a different question entirely: whether you were given the information you needed to decide in the first place. A surgeon can perform an operation flawlessly, with no technical error at all, and still be responsible if you were never told about a serious risk that came to pass and you would have made a different decision had you known. The wrong is not in how the procedure was done. It is in the choice that was quietly taken away from you.
What a provider is supposed to disclose
Florida measures the required disclosure by what a careful provider would tell a patient in the same situation. That generally includes the material risks of the procedure, the reasonable alternatives to it, including the alternative of doing nothing, and a fair description of what the procedure involves and what recovery looks like. A material risk is one a reasonable patient would want to weigh, and the more serious the potential harm, the more important the disclosure becomes. The purpose is to give you a real basis for a decision, not to satisfy a formality. A rushed conversation, a form pushed across a counter minutes before surgery, or a disclosure that leaves out the very risk that later occurs can all fall short of what the law requires.
The consent form is not the end of the story
Providers often point to a signed consent form as if it settles everything. It does not. The form is evidence, and an important piece of it, but the question is whether the disclosure met what the law requires, measured by what a careful provider would have told you. If the form did not mention the risk that harmed you, or the conversation around it fell short of a real disclosure, the signature alone does not defeat the claim. These cases turn on reconstructing what you were and were not told, comparing it against what should have been disclosed, and showing the gap.
Where consent most often falls short
Informed consent problems tend to cluster around certain situations. Elective procedures, where the patient had time to weigh options and was entitled to a full picture, are a common setting, because the whole point of an elective choice is that it is informed. Newer or higher-risk procedures, where the serious complications are real but were glossed over, are another. So are situations where a provider recommended an aggressive option without fairly presenting a more conservative alternative, or where the consent conversation happened moments before the procedure, when a patient is in no position to absorb and weigh what they are being told. In each of these, the failure is not the outcome of the procedure but the shortcut taken with the patient’s right to decide. Recognizing these patterns is part of evaluating whether what happened to you was a genuine informed choice or a decision made for you without the facts.
Proving the case and its causation
An informed consent case has its own causation question, and it is where these cases are often fought. It is not enough to show a risk went undisclosed. You generally have to show that the undisclosed risk is what harmed you, and that a reasonable patient, given the full picture, might have declined the procedure or chosen a different path. The defense will argue you would have gone ahead anyway. Answering that requires the records, the consent documents, and expert testimony about what a careful provider discloses, the kind of detailed, document-focused work I have built my career on.
It is worth being clear about what an informed consent case is not. It is not second-guessing every risk of every procedure, and it is not a claim that any bad outcome should have been avoided. Medicine carries risk, and a patient who was fairly told about a risk and chose to proceed generally cannot complain when that risk occurs. The claim is narrower and more principled than that. It is about the cases where the patient was never given the chance to weigh a serious risk at all, where the decision was effectively made for them by what they were not told. That is the wrong these cases address, and keeping the focus there is part of evaluating a claim with candor.
I represent patients, not the providers or their insurers, I handle the case personally, and I am prepared to take it to a jury, together with experienced co-counsel where the case calls for it. Learn more about my background.
How these cases fit with other malpractice claims
An informed consent claim often travels alongside an ordinary negligence claim rather than standing entirely alone. A single case can include both a claim that the procedure itself was performed below the standard of care and a separate claim that the risks were never properly disclosed, and the two are evaluated on their own terms. Pursuing them together, where the facts support it, gives a fuller picture of what went wrong and preserves every avenue to hold the provider accountable for the harm you suffered.
Common Questions
What is informed consent?
It is the requirement that a provider tell you about the risks, the alternatives, and what a procedure involves before you agree to it, so your decision is truly informed. When a provider fails to disclose what a careful provider would have, and you are harmed by a risk you were never told about, you may have a claim.
I signed a consent form. Does that end my case?
Not necessarily. A signed form is evidence, but it does not automatically defeat a claim. If the form did not disclose the risk that harmed you, or the disclosure fell short of what the law requires, the signature alone is not the end of the analysis.
Is a lack of informed consent the same as a botched procedure?
No, and that is what makes it distinct. A procedure can be performed competently and still give rise to an informed consent claim if you were never told about a serious risk that then occurred, and you would have made a different choice had you known.
What has to be disclosed?
Generally, the risks a careful provider would consider material, the reasonable alternatives, including the option of no treatment, and what the procedure involves. The point is to give you enough to make a real decision, not to bury a risk in dense paperwork.
What do I have to prove?
Generally, that the provider failed to disclose what a careful provider would have disclosed, that an undisclosed risk caused you harm, and that a reasonable patient, properly informed, might have declined the procedure or chosen a different course.
This page is general information about Florida medical malpractice law, not legal advice, and it does not create an attorney-client relationship. The governing authorities include Chapter 766 of the Florida Statutes, including the pre-suit notice and corroborating-expert-opinion requirements in sections 766.106 and 766.203 and the professional standard of care in section 766.102, and the two-year limitations period and four-year statute of repose in section 95.11(5)(c). The former statutory caps on noneconomic damages in section 766.118 were held unconstitutional in Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), and North Broward Hospital District v. Kalitan, 219 So. 3d 49 (Fla. 2017). Every case is different, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely on advertisements.
