Informed consent is a communication and decision process documented through the surrounding record. The diagnosis, proposed treatment, information provided, alternatives, risks and hazards discussed, patient questions, capacity, authorization, and treatment actually performed can all matter. A signed form is one part of that evidence.

A signature is important evidence, but the North Carolina informed-consent analysis does not begin and end with the form.

Start with the current North Carolina statute

G.S. 90-21.13 addresses when a provider is protected from recovery on a claim that treatment was rendered without informed consent. The statute considers professional practice, whether the information would give a reasonable person a general understanding of the procedure and its usual and most frequent recognized risks and hazards, and whether a reasonable person would have undergone the treatment under the surrounding circumstances.

The statute also addresses written consent, capacity, emergency treatment, and a rebuttable presumption for a written consent that meets the statutory standards. The exact subsection and evidence should be analyzed rather than summarized as “a signed form always controls” or “every possible risk must be listed.”

Preserve the complete communication record

  • Diagnosis, proposed treatment, treatment goal, expected benefit, alternatives, no-treatment option, and the reason for the recommendation
  • Risks and hazards discussed, their relevance to the patient, written materials, diagrams, videos, device labeling, instructions, and questions
  • Date, time, setting, clinician, patient or authorized decision-maker, capacity information, interpreter or accessibility assistance, witnesses, and opportunity to consider
  • Signed forms and versions, clinic and hospital notes, portal messages, recordings lawfully made, and later descriptions from the people present

Compare consent with the treatment actually performed

  • The procedure, site, side, level, device, implant, anesthesia, participants, and material changes from the planned treatment
  • What new circumstances arose after consent and whether additional communication was feasible or an emergency exception was asserted
  • Whether the claimed injury was a disclosed risk, a different event, or the result of an alleged negligent performance rather than inadequate consent
  • What the patient says would have been decided with the information allegedly required, assessed with the statute's reasonable-person provisions

Use Foard as a statutory illustration

In Foard v. Jarman, the North Carolina Supreme Court analyzed G.S. 90-21.13 in a gastroplasty case. The Court explained that the statute is written in the disjunctive and examined professional testimony, the procedure and risk information provided, the patient's reading of that information, and the experience-related allegation. The opinion should be applied to its facts and read with the current statute and later authority.

Separate informed consent from negligent performance

A provider may adequately explain a recognized risk yet still face a different allegation about how the procedure was performed. Conversely, an adverse event does not prove that consent was inadequate. Identify whether the claimed theory concerns missing information, unauthorized treatment, capacity or decision-maker authority, fraud or misrepresentation, negligent performance, or several distinct issues.

Connect the consent issue to a causal decision

The record should support what information allegedly should have been provided, why it was material, whether a reasonable person would have declined or chosen differently under the circumstances, and how the treatment caused the injury. Rule of Evidence 702 governs qualified expert testimony, including testimony about a medical standard of care.

See how consent evidence changes in an elective procedure

The related cosmetic and plastic surgery malpractice guide applies the consent question to procedure goals, advertising, photographs, devices, operative plans, known complications, and follow-up evidence.

The North Carolina Medical Board's patient consent resource gives a practical overview of diagnosis, treatment, risks and benefits, alternatives, questions, minors, and emergencies. It is educational guidance and does not replace the statutory analysis.

Rosensteel Fleishman Car Accident & Injury Lawyers provides information about consulting a Charlotte informed-consent medical malpractice attorney when the communication, signed documents, authorization, treatment performed, or causal decision is disputed.

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