Informed Consent in Georgia and South Carolina: What Patients Need to Know

Before surgery and other significant procedures in Georgia or South Carolina, your doctor has a legal and ethical obligation to obtain your informed consent. Georgia’s duty is set by statute (O.C.G.A. § 31-9-6.1) and covers only surgery under general, spinal or major regional anesthesia, amniocentesis and contrast-injection diagnostic tests; South Carolina’s court-made duty covers any diagnostic, therapeutic or surgical procedure. This means more than handing you a clipboard with forms to sign—it requires your physician to explain what they plan to do, why, what the risks are, and what alternatives exist so you can make a truly informed decision about your own healthcare. When a doctor fails to obtain proper informed consent and you suffer harm as a result, you may have grounds for a medical malpractice claim. For a comprehensive overview of informed consent doctrine, see the informed consent entry from the Legal Information Institute at Cornell Law School.

What Is Informed Consent in Medicine?

Informed consent is the legal principle that patients have the right to understand and authorize medical treatment before it is performed. It is rooted in the fundamental idea that every competent adult has the right to determine what happens to their own body.

Informed consent is not simply a signed form. It is a process of communication between doctor and patient. The consent form is documentation that the conversation occurred, but the form alone does not prove that the doctor adequately informed the patient about the procedure. In Georgia a compliant signed form creates only a rebuttable presumption of consent; in South Carolina what matters is what the physician actually disclosed.

Georgia recognizes no common-law duty to disclose (Blotner v. Doreika, 285 Ga. 481 (2009)), so medication changes, radiation therapy and physical therapy fall outside its statute. South Carolina’s duty comes from Hook v. Rothstein, 281 S.C. 541 (Ct. App. 1984), and can reach them as therapeutic procedures.

What Doctors Must Disclose Before Treatment

For consent to be truly “informed,” your physician must provide you with enough information to make a knowledgeable decision. Georgia’s statute and South Carolina case law require doctors to explain the same six items:

• The diagnosis: What condition is being treated and why treatment is recommended
• The proposed treatment: The nature and purpose of the procedure, surgery, or course of treatment the doctor recommends
• Material risks: The significant risks and potential complications associated with the proposed treatment, including their likelihood and severity
• Likelihood of success: The probability that the treatment will succeed
• Alternative treatments: Generally accepted treatment options, including their risks and benefits
• Prognosis if you decline: What could happen if the patient chooses not to undergo the recommended procedure

The doctor does not need to disclose every conceivable risk—only those that are material. In Georgia a material risk is one of the statute’s listed harms (such as infection, paralysis, brain damage or death) that reasonably prudent physicians recognize and that would lead a reasonably prudent patient to decline the procedure. In South Carolina the measure is what a reasonable physician in the same field would disclose. Extremely rare complications that would not influence a reasonable person’s decision generally do not need to be disclosed.

Informed Consent Laws in Georgia vs. South Carolina

While both states recognize the informed consent doctrine, there are important differences in scope, standard and procedure:

Georgia’s Statutory Standard

Georgia’s rule is entirely statutory. Under O.C.G.A. § 31-9-6.1 the doctor must disclose, in general terms, the six items the statute lists, and a risk is material only if reasonably prudent physicians recognize it and a reasonably prudent patient would decline the procedure because of it. Expert medical testimony is essential—your expert’s affidavit must state that your injury was a material risk the statute required to be disclosed (O.C.G.A. § 31-9-6.1(d)).

Georgia law also creates a presumption in favor of the physician when a written consent form has been signed. Under O.C.G.A. § 31-9-6.1, a signed consent form that covers the six required disclosures in general terms creates a rebuttable presumption that informed consent was obtained. However, patients can overcome this presumption by showing that the form was inadequate, misleading, or that the doctor did not actually explain what the form described.

South Carolina’s Professional Standard

South Carolina has no informed-consent statute. Its rule comes from Hook v. Rothstein (1984), which rejected the patient-centered standard: a physician must disclose what a reasonable physician in the same field would disclose, proven through expert testimony. What other physicians customarily disclose is central evidence, not a defense the law rejects. Causation is objective: would a reasonable person in your position have refused the treatment if told of the risk? South Carolina is broader than Georgia in scope, not in standard.

South Carolina courts have emphasized that the patient’s right to self-determination is the foundation of informed consent law, and that doctors have a duty to respect patients’ autonomy by providing the information a reasonable physician would give.

When Informed Consent Is Not Required

Georgia and South Carolina each recognize exceptions where medical treatment may proceed without the standard informed consent process:

• Medical emergencies: When a patient is unconscious, incapacitated, or in immediate danger of death or serious harm, doctors can provide life-saving treatment without consent. The assumption is that a reasonable person would consent to emergency care
• Therapeutic privilege (South Carolina): A doctor may withhold information if the doctor reasonably believes a candid disclosure might harm the patient’s physical or psychological well-being (Hook v. Rothstein). Georgia’s statute has no such exception
• Patient waiver: A patient may explicitly waive their right to be informed, telling the doctor they do not want to know the details and prefer the doctor to decide. In Georgia the request must be in writing (O.C.G.A. § 31-9-6.1(e)(3))
• Procedures with no material risk: Georgia excuses disclosure for procedures reasonably prudent physicians recognize as carrying no material risk (O.C.G.A. § 31-9-6.1(e)(2)); South Carolina does not require disclosure of remote, minor risks
• Recent or advance consent (Georgia): A compliant consent given within the prior 30 days as part of a course of treatment, or your advance authorization for the physician to decide on unforeseen procedures (O.C.G.A. § 31-9-6.1(e)(4)–(5))

How Lack of Informed Consent Becomes Medical Malpractice

A doctor’s failure to obtain informed consent does not automatically create a viable malpractice claim. To recover damages, you must prove four elements:

1. Duty to disclose: The doctor had an obligation to inform you of specific risks, alternatives, or other material information before treatment
2. Breach of duty: The doctor failed to disclose that information or provided inadequate disclosure
3. Causation: Had you been properly informed, a reasonable patient in your position would have declined the procedure or chosen an alternative—an objective test in both states (O.C.G.A. § 31-9-6.1(d); Hook v. Rothstein). This is often the most contested element
4. Injury: You suffered actual harm as a result of the undisclosed risk materializing. If the procedure went perfectly despite the lack of informed consent, there is no malpractice claim

The causation element is what distinguishes informed consent claims from simple disclosure failures. Even if your doctor completely failed to explain the risks of a surgery, you only have a claim if the undisclosed risk actually caused you harm AND a reasonable patient would have declined the procedure had they known about that risk.

Proving an Informed Consent Violation

Building a successful informed consent case requires gathering substantial evidence:

Medical records: Your complete medical file, including consent forms, operative notes, pre-operative evaluations, and progress notes. Gaps or inconsistencies in the documentation can support your claim that the consent process was inadequate.

The consent form itself: A generic, boilerplate consent form that does not specifically identify the risks of your particular procedure may support an argument that informed consent was not truly obtained, even if you signed the form.

Expert medical testimony: In Georgia the expert affidavit filed with the complaint must state that your injury was a material risk the statute required to be disclosed (O.C.G.A. §§ 9-11-9.1, 31-9-6.1(d)). In South Carolina an expert affidavit accompanies both the pre-suit Notice of Intent (S.C. Code § 15-79-125) and the complaint (S.C. Code § 15-36-100), and at trial an expert in the same field must establish what a reasonable physician would have disclosed (Hook v. Rothstein).

Your own testimony: Your account of what the doctor did and did not tell you before the procedure is critical. Courts consider whether you asked questions, how much time was spent on the consent discussion, and whether you felt rushed or pressured.

Witnesses: Family members or others who were present during pre-operative consultations may testify about what information was or was not provided.

Common Types of Informed Consent Cases

Informed consent violations arise in many medical contexts, but certain situations produce claims more frequently than others:

• Surgical complications: Nerve damage, organ perforation, infection, or chronic pain following surgery where the risks were not adequately explained. Orthopedic surgeries, spinal procedures, and cosmetic operations are common sources of claims
• Medication side effects: Prescribing medications with serious side effects—such as blood thinners, chemotherapy drugs, or psychiatric medications—without adequately warning patients of the risks (South Carolina; in Georgia a drug-warning failure is ordinary malpractice, not informed consent)
• Scope of procedure changes: Performing additional procedures beyond what was consented to during surgery, such as removing an organ or extending the surgical site without prior authorization
• Childbirth interventions: Performing cesarean sections, episiotomies, or forceps deliveries without adequate disclosure of risks and alternatives (in Georgia, only when performed under spinal, epidural or general anesthesia). Birth injury cases involving infant brain injuries from undisclosed procedural risks are among the most devastating
• Diagnostic procedure risks: Reactions to contrast dye in imaging studies, and complications of biopsies, catheterizations and endoscopies where risks were not disclosed (in Georgia, only contrast studies, amniocentesis and procedures under the listed anesthesia)
• Alternative treatment options: Recommending surgery without informing the patient that conservative treatment, physical therapy, or watchful waiting were viable alternatives

Cases involving nursing home residents and elderly patients raise additional informed consent issues, particularly regarding medication management, restraint use, and decisions made by healthcare proxies or powers of attorney.

How a Medical Malpractice Lawyer Can Help

Informed consent cases are among the most nuanced areas of medical malpractice law. You need an attorney who understands both the medical and legal complexities of these claims. An experienced medical malpractice lawyer can:

• Review your medical records and consent forms to identify specific disclosure failures
• Consult with medical experts in the relevant specialty to evaluate whether your doctor met the applicable standard of care
• Handle the pre-suit steps—Georgia’s expert affidavit with the complaint, and South Carolina’s Notice of Intent, expert affidavit and mandatory mediation—because a missing affidavit means dismissal in both states
• Establish causation by demonstrating that a reasonable patient in your position would have chosen differently with complete information
• Calculate the full value of your damages including medical expenses, additional corrective procedures, lost income, pain and suffering, and diminished quality of life
• Navigate Georgia’s rebuttable presumption created by signed consent forms
• Negotiate with hospital and physician malpractice insurers who aggressively defend these claims

At Roden Law, we handle medical malpractice cases across Georgia and South Carolina, including claims based on lack of informed consent. We work on a contingency fee basis—you pay nothing unless we recover compensation for you. If you believe your doctor performed a procedure without adequately informing you of the risks and you suffered harm as a result, contact us today for a free consultation. Call 1-844-RESULTS to discuss your case with an attorney who will hold negligent healthcare providers accountable.

About the Author

Graeham C. Gillin

Partner, COO