Skip to Content
Medical Malpractice

Older Patients and Informed Consent

April 16, 2024

As America’s population continues to age, important questions are beginning to emerge concerning how to provide the best medical care for older patients. Obtaining the patient’s informed consent is a fundamental part of providing effective treatment. Unfortunately, this can be difficult for older patients who are beginning to experience cognitive decline as that can cause them to become easily overwhelmed and confused. Failure to accommodate a patient’s cognitive state can raise questions about whether the consent they provided was truly informed. You should consider speaking with a medical malpractice attorney as soon as possible if you have questions about how informed consent was obtained in treatment that you or a loved one received.  

Assess the Patient’s Ability to Understand the Information

Obtaining an older patient’s consent should involve an assessment of their capacity to understand the information to be presented. This does not necessarily require any formal testing, but doctors should at least review the patient’s medical records to familiarize themselves with any limitations the patient may have. They can also briefly engage them in conversation to ensure that they are alert and aware of their surroundings. 

Older patients often have cognitive impairments such as dementia or memory issues that affect their ability to understand complex medical information. In such cases, it may be necessary to involve a family member, a caregiver, or other legally appointed representatives in obtaining consent to proceed.

Informed Consent Requires Meaningful Communication

Informed consent requires that the patient be given sufficient information to allow them to make a decision about their medical care. As such, it requires that the doctor explain the recommended treatment, optional treatments, potential risks and side effects, and the benefits of the recommended treatment if successful. 

Typically, this involves a conversation between the doctor and the patient. The patient should have the opportunity to ask questions. With older patients, doctors should take a more tailored approach, taking into account any cognitive, sensory, or other limitations the patient may have due to their age. They should make an extra effort to use simple, non-technical language and make an effort to explain further if the patient appears to be confused or doesn’t understand. If the patient brought a caregiver with them, the doctor should at least make sure that the caregiver fully understands the information being communicated. 

Informed Consent Must Be Voluntarily Given

Doctors should also try to assess whether the patient is consenting to treatment voluntarily. Older patients may be pressured or even bullied by caregivers or family members to consent to treatment even though they may be confused or unable to understand. Older patients who are aware of their limitations may feel embarrassed and see consent as the easiest and fastest way to end a difficult situation. 

Continuing Evaluation 

Doctors may also need to continually re-evaluate an older patient’s ability to give consent if they are aware of or concerned about any changes to their cognitive abilities or mental health. The patient may have understood the course of treatment at the outset, but may not be able to understand the potential side effects or risks associated with subsequent procedures. 

The Connection Between Informed Consent and Medical Malpractice

Obtaining a patient’s informed consent is a critical step in the treatment process. The purpose is to allow patients to play a meaningful role in making decisions about their medical treatment. As such, they need to be able to understand the potential risks, outcomes, and complications.  As a result, failure to obtain a patient’s informed consent may constitute medical practice if the patient later suffers harm as a result of the treatment. 

The informed consent process has become standard operating procedure for almost any healthcare provider. They almost always, therefore, have patients sign an informed consent form as a record of the informed consent process. However, the fact that there is a signed consent form does not mean that the patient was given the information that they needed or in a way that they could understand. In addition, informed consent does not absolve healthcare providers of their responsibility to provide treatment that conforms to the standard of care. 

As a result, do not assume that you do not have a medical malpractice claim if you or a loved one suffered harm from the treatment they received. Instead, contact a medical malpractice attorney. They can review your case and determine whether you may have a claim. 

Contact Ragain & Clark if You Have Questions About Informed Consent

Informed consent is a difficult issue, particularly when it involves elderly patients. Whether you are in Wyoming or Montana, we can help you sort through the potential issues. Contact us today by calling 406-651-8888 (Billings) or 307-388-6400 (Worland) to schedule a free consultation to discuss your case.


Get Trusted Help Now

We provide legal representation to Montana and Wyoming individuals and small businesses.