When informed consent goes poorly: a descriptive study of medical negligence claims and patient complaints

Andrew J Gogos, Richard B Clark, Marie M Bismark, Russell L Gruen and David M Studdert
Med J Aust 2011; 195 (6): 340-344. || doi: 10.5694/mja11.10379


Objective: To describe the frequency, characteristics, and outcomes of medicolegal disputes over informed consent.

Design and setting: Retrospective review and analysis of negligence claims against doctors insured by Avant Mutual Group Limited and complaints lodged with the Office of the Health Services Commissioner of Victoria that alleged failures in the informed consent process and were adjudicated between 1 January 2002 and 31 December 2008.

Main outcome measures: Case frequency (by medical specialty), type of allegation, type of treatment.

Results: A total of 481 cases alleged deficiencies in the informed consent process (218 of 1898 conciliated complaints [11.5%]; 263 of 7846 negligence claims [3.4%]). 57% of these cases were against surgeons. Plastic surgeons experienced dispute rates that were more than twice those of any other specialty or subspecialty group. 92% of cases (442/481) involved surgical procedures and 16% (77/481) involved cosmetic procedures. The primary allegation in 71% of cases was that the clinician failed to mention or properly explain risks of complications. Five treatment types — procedures on reproductive organs (12% of cases), procedures on facial features excluding eyes (12%), prescription medications (8%), eye surgery (7%) and breast surgery (7%) — accounted for 46% of all cases.

Conclusions: The typical dispute over informed consent involves an operation, often cosmetic, and allegations that a particular complication was not properly disclosed. With Australian courts now looking to patient preferences in setting legal standards of care for risk disclosure, medicolegal disputes provide valuable insights for targeting both quality improvement efforts and risk management activities.

  • Andrew J Gogos1
  • Richard B Clark2
  • Marie M Bismark3
  • Russell L Gruen4
  • David M Studdert3,5

  • 1 Royal North Shore Hospital, Sydney, NSW.
  • 2 Avant Mutual Group Limited, Melbourne, VIC.
  • 3 Melbourne School of Population Health, University of Melbourne, Melbourne, VIC.
  • 4 Department of Surgery, The Alfred Hospital, Monash University, Melbourne, VIC.
  • 5 Melbourne Law School, University of Melbourne, Melbourne, VIC.



This study was supported by a Linkage Grant from the Australian Research Council (LP0989178), with partner contributions from the Office of the Health Services Commissioner of Victoria, the Victorian Department of Health, and Avant Mutual Group Limited. David Studdert was supported by a Federation Fellowship from the Australian Research Council. Russell Gruen was supported by a Career Development Award from the National Health and Medical Research Council.

Competing interests:

No relevant disclosures.

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