Utah Informed Consent Malpractice Claims: What a Patient Must Prove
General information, not legal advice. Read the full disclaimer.
Short answer: Under Utah Code § 78B-3-406, when you submit to health care it is presumed that the provider's actions are expressly or impliedly authorized. To recover for failure to obtain informed consent, the patient must prove seven things: a provider-patient relationship; the provider rendered care; you suffered injuries arising from it; the care carried a substantial and significant risk of serious harm; you were not informed of that risk; a reasonable, prudent person in your position would not have consented if fully informed; and the unauthorized part of the care proximately caused your injuries.
Who this guide is for
Patients who suffered a complication they say they weren't warned about, and who want to know how Utah law treats a lack of informed consent.
The seven elements
- A provider-patient relationship existed.
- The provider rendered health care to you.
- You suffered personal injuries arising out of that care.
- The care carried a substantial and significant risk of causing serious harm.
- You weren't informed of that substantial and significant risk.
- A reasonable, prudent person in your position would not have consented after being fully informed of all relevant facts.
- The unauthorized part of the care was the proximate cause of your injuries.
The "reasonable person" question is judged from your viewpoint before the care and before any injuries occurred — not in hindsight.
Defenses available to providers
The statute lists defenses, including that:
- the risk of the serious harm you actually suffered was relatively minor;
- the risk was commonly known to the public;
- you said before the care that you would accept it regardless of the risk or didn't want to be informed;
- the provider reasonably used discretion about how much to disclose because additional disclosures could be expected to have a substantial and adverse effect on your condition; or
- you (or your representative) signed a written consent that describes the nature and purpose of the care, declares that you accept the risk of substantial and serious harm, if any, and acknowledges that the providers explained your condition and the proposed care and answered your questions.
A signed written consent is a defense unless the patient proves that the person giving consent lacked capacity, or shows by clear and convincing evidence that signing the form was induced by the provider's fraudulent misrepresentation or fraudulent omission of material facts.
What this means for your claim
- Consent forms matter, but not always. A form that says "I accept the risk of serious harm" and acknowledges explanations can defeat the claim unless you prove lack of capacity or fraud by clear and convincing evidence.
- What you were told is key. Notes, discharge paperwork, and your own recollection (written down early) help establish whether the specific risk was disclosed.
- Causation and "would you have refused?" The case often turns on whether a reasonable patient, informed of the risk, would have declined or chosen a different treatment. Alternatives offered, urgency, and your health circumstances matter.
- It's still a malpractice claim. All the Act's pre-suit steps, deadlines, and limits apply. See Utah Medical Malpractice Statute of Limitations, Utah Medical Malpractice Notice of Intent and Prelitigation Panel, and Utah Medical Malpractice Damages Cap, Offsets, and Fee Limit.
Informed consent in surgery
Many informed-consent claims involve surgery: a complication that is a known risk but wasn't discussed. See Utah Surgical Error Claims.
Frequently asked questions
Is a complication automatically malpractice?
No. Known risks can occur without negligence. An informed-consent claim focuses on whether a substantial risk was disclosed.
Does a signed consent form end my case?
A written consent that meets the statute's description is a defense unless you prove lack of capacity or fraud in obtaining it.
Does the risk have to be common?
The statute requires a substantial and significant risk of serious harm, and it's a defense if the risk was relatively minor or commonly known.
Who decides what a reasonable person would have done?
The fact finder, from the viewpoint of the patient before the care was provided.