The doctrine of informed consent evolved out of recognition and respect for the individual’s inherent right to autonomy with regards to all aspects of their being, establishing that the individual has a right to be free from nonconsensual interference with
their person or to be forced to act knowingly or unknowingly in a manner against their will.⁵ In the present day, the doctrine of informed consent, therefore, guides medical decision-making by establishing limits to the doctor-patient relationship. Therefore, the patient’s informed consent to treatment is essential to the practitioner for reducing liability risk insofar as claims of battery or negligent nondisclosure are concerned. A properly executed informed consent serves to underscore the patient’s inherent right to autonomy in medical or optometric decision-making, which is the underlying principle in all consent cases, be they medical negligence (specifically negligent nondisclosure) or battery, the two circumstances upon which the majority of medical liability actions are based.¹,⁵,⁶

The legal doctrine of battery protects a patient’s physical integrity and dignity from harmful contacts or unwanted physical contacts. Note that physical injury is not required for a battery to have occurred. The doctrine only requires that the patient show they were not informed of the very nature of the touching or contact, as might occur, for example, during a laser or surgical procedure. If a practitioner operates on a structure other than that which he and the patient discussed, a battery has occurred. If the patient is not made aware that the practitioner will perform a specific procedure and has not consented, a claim for battery may be brought forth.

Health care practitioners have legal liability exposure to claims for battery, negligent nondisclosure, and the failure to obtain informed consent. Battery is an intentional tort that does not require proof of negligence or of the intent to harm. Generally, a person commits battery by intentionally touching another individual without consent. The individual may be permitted to recover monetary damages absent bodily injury, although the damages awarded in such circumstances may be nominal. Battery is also a crime punishable by fines and imprisonment, although charges of criminal battery are usually only attached if there has been a significant injury to the recipient of the offense.⁴

In eyecare practice, consent may be expressed (permission that is explicitly given, either verbally or in writing) or implied (an assumption of permission that is inferred from actions) by the patient seeking treatment or their legal guardian. In cases of an emergency, mainly when the patient is unable or incapable of giving express consent, consent may be implied by law. Whether consent is given or implied, some boundaries limit the practitioner’s actions. A practitioner exposes themselves to liability for battery if the treatment furnished exceeds the limits of the consent either given or implied.⁴

While a properly executed, informed consent may be enough for the practitioner to defend a battery claim successfully, several elements must be addressed to deliver a proper and complete disclosure.¹,⁷,⁸ These elements include the following:

With regards to a discussion of the anticipated benefits and risks of a procedure, if the consent, or the patient’s refusal, was not preceded by disclosure of the known material benefits, risks, and alternatives, the practitioner may be open to liability, even if the procedure itself was performed competently without technical error, or if the procedure was declined in the case of patient refusal.¹,⁹

In the case of patient refusal, for there to be liability for lack of informed consent, the patient generally must show that the physician was negligent, that there was an injury with sustained damages, and that the negligent nondisclosure was a proximate cause of the injury and damages. A claim brought forth for lack of informed consent is based on professional negligence (medical malpractice). Unlike a claim of battery, which requires proof of an intentional touch without consent, a negligent nondisclosure claim requires proof that the health care practitioner failed to furnish care in conformity with the applicable standard of care, alongside proof of injury, damages, and causation. The determination of whether the standard of care has been met or breached is generally established through the testimony of expert witnesses.¹,²