What Is a Failure to Obtain Informed Consent Case?

Did your doctor fail to inform you of the risks before a procedure in Georgia or South Carolina? Our medical malpractice lawyers pursue informed consent claims when patients are not given the information needed to make treatment decisions.

— Reviewed by Eric Roden, Founding Partner, CEO at Roden Law

Informed Consent Claims in Georgia & South Carolina

Every patient has the legal right to make informed decisions about their medical care. Before performing a surgery, procedure, or treatment, a doctor must explain the nature of the proposed treatment, its material risks and potential complications, alternative treatment options, and the risks of foregoing treatment entirely. When a doctor fails to provide this information and the patient suffers harm from a risk they were not warned about, the patient may have an informed consent claim — a specific type of medical malpractice.

At Roden Law, our informed consent lawyers represent patients across Georgia and South Carolina who were not given the information they needed to make meaningful decisions about their medical care. These cases arise when patients suffer complications they would have avoided had they been properly informed of the risks and alternatives.

Georgia Informed Consent Law

Georgia’s informed consent requirements are established through case law and statute. Under Georgia law, a doctor must disclose material risks that a reasonable patient would want to know in making a treatment decision. Georgia uses the “professional” standard — meaning the disclosure required is measured by what a reasonable medical practitioner in the same specialty would have disclosed under similar circumstances.

Georgia’s medical malpractice framework applies to informed consent claims, including the expert affidavit requirement under O.C.G.A. § 9-11-9.1 and the 5-year statute of repose under O.C.G.A. § 9-3-71.

South Carolina Informed Consent Law

South Carolina addresses informed consent through its medical malpractice statute. Under S.C. Code § 15-79-125, informed consent claims are subject to the same Notice of Intent and expert opinion requirements as other medical malpractice actions. South Carolina courts evaluate whether the doctor provided sufficient information for a reasonable patient to make an informed decision about their treatment.

Common Informed Consent Failures

Informed consent failures can occur in many medical contexts:

  • Failure to disclose known risks of a surgical procedure, such as nerve damage, paralysis, or infection
  • Not informing patients of less invasive alternative treatments
  • Failing to explain the risks of a medication, including serious side effects and drug interactions
  • Performing a different or more extensive procedure than what the patient consented to
  • Not disclosing the surgeon’s lack of experience with a particular procedure
  • Obtaining consent when the patient was under sedation, in pain, or otherwise unable to give meaningful consent
  • Failing to use a qualified interpreter for non-English-speaking patients

Informed consent failures often accompany other forms of malpractice. If your doctor performed a procedure you did not fully consent to and a surgical error occurred, you may have claims for both informed consent failure and surgical negligence. When informed consent failures involve anesthesia, the anesthesiologist’s separate duty to obtain consent for the anesthesia plan may also apply.

Proving an Informed Consent Claim

To succeed in an informed consent case, you must prove three elements:

  • Failure to disclose: The doctor did not adequately inform you of a material risk, complication, or alternative treatment
  • Causation: Had you been properly informed, you would not have consented to the procedure
  • Harm: You suffered injury from the undisclosed risk

The causation element often centers on what a “reasonable patient” would have decided if properly informed. Courts consider whether the undisclosed risk was significant enough that a reasonable person would have reconsidered the treatment.

Damages in Informed Consent Cases

Patients who prove informed consent violations may recover compensation for all injuries and complications resulting from the procedure, additional medical treatment required, lost wages during recovery, pain and suffering, emotional distress, and loss of bodily function or autonomy. In cases where an informed consent failure leads to catastrophic injury or death, our wrongful death lawyers are available to assist. Contact Roden Law for a free consultation.

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What to Do After A failure to obtain informed consent

  1. Ensure safety and call 911. Move to a safe location if possible. Call emergency services to report the accident and request medical attention for anyone injured.
  2. Seek immediate medical attention. Even if injuries seem minor, get examined by a doctor. Some injuries — such as traumatic brain injuries or internal bleeding — may not show symptoms immediately.
  3. Document the scene. Take photos of all vehicles, injuries, road conditions, traffic signs, and any visible damage. Collect names and contact information from witnesses.
  4. Exchange information with all parties. Get the other driver's name, insurance information, license plate number, and driver's license number. Do not admit fault or apologize.
  5. Report the accident to police. your state law requires accident reports when there are injuries or significant property damage. Request a copy of the police report.
  6. Notify your insurance company. Report the accident to your insurer promptly. Provide factual information only — do not speculate about fault or the extent of your injuries.
  7. Contact an experienced personal injury attorney. An attorney can protect your rights, handle communications with insurance companies, and help you pursue the full compensation you deserve. Roden Law offers free consultations — call today.

Proving Your Failure to Obtain Informed Consent Case

To win a personal injury case involving a failure to obtain informed consent, your attorney must establish the four elements of negligence by a preponderance of the evidence.

01

Duty of Care

The other party owed you a legal duty to act in a manner that ensured your safety.

02

Breach of Duty

The other party breached that duty by failing to act as a reasonably prudent person would have.

03

Causation

The breach directly caused your injuries. We gather evidence proving that but for their negligence, you would not have been harmed.

04

Damages

You suffered actual, quantifiable damages — medical expenses, lost income, pain and suffering — as a direct result.

Compensation Available in Failure to Obtain Informed Consent Cases

Victims of a failure to obtain informed consent injuries in Georgia and South Carolina can pursue economic damages (quantifiable financial losses) and non-economic damages (quality-of-life impacts). There is no cap on compensatory damages in either state.

Economic Damages

  • Past and future medical expenses
  • Lost wages or income
  • Loss of earning capacity
  • Property damage and repair/replacement
  • Cost of rehabilitation and physical therapy
  • Assistive medical equipment
  • Cost of long-term or lifelong care

Non-Economic Damages

  • Pain and suffering
  • Mental and emotional distress
  • Loss of companionship (spouse/family)
  • Disability and disfigurement
  • Loss of enjoyment of life
  • Humiliation or loss of reputation

Non-economic damages can only be pursued through a personal injury lawsuit, not a standard insurance claim.

Statute of Limitations for Failure to Obtain Informed Consent Cases

The statute of limitations is the legal deadline for filing a personal injury lawsuit. In Georgia, you have 2 years from the date of injury (O.C.G.A. § 9-3-33). In South Carolina, you have 3 years (S.C. Code § 15-3-530). Missing this deadline permanently bars your claim.

🍑 Georgia Filing Deadline 2 Years O.C.G.A. § 9-3-33
🌙 South Carolina Filing Deadline 3 Years S.C. Code § 15-3-530

If you fail to file within the statute of limitations, your claim will be dismissed and you will permanently lose the right to pursue compensation.

What If I'm Partially At Fault?

🍑 Georgia — Modified Comparative Fault

You can recover if less than 50% at fault (O.C.G.A. § 51-12-33). Your award is reduced by your fault percentage.

🌙 South Carolina — Modified Comparative Fault

You can recover if less than 51% at fault. Your award is reduced by your fault percentage.

For example, if you filed a $100,000 lawsuit and a court finds you are 30% at fault, your award would be reduced to $70,000. Our attorneys work to minimize any fault assigned to you.

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Roden Law Failure to Obtain Informed Consent Lawyers Results at a Glance

$250M+ Recovered for injured clients across Georgia and South Carolina
4.9 / 5.0 Average client rating based on 500+ verified reviews
5,000+ Cases successfully handled since 2013
62 years Combined attorney experience across 5 office locations

Source: Roden Law firm records and verified Google Business Profile reviews, updated May 2026.

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Results shown are gross settlement/verdict amounts before fees and costs. Past results do not guarantee similar outcomes.

About the Author

Eric Roden, Founding Partner, CEO at Roden Law

Eric Roden

Founding Partner, CEO State Bar of Georgia Georgia Court of Appeals Supreme Court of Georgia

Frequently Asked Questions

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