When Does Lack of Informed Consent Support a Malpractice Claim in Georgia?

Only for the procedures and risks Georgia’s disclosure statute names, and only when the undisclosed risk actually happened. O.C.G.A. § 31-9-6.1 covers surgery under general, spinal, or major regional anesthesia, amniocentesis, and diagnostic procedures involving intravenous or intraductal injection of contrast material. A violation is not a separate claim; it “may give rise to an action for medical malpractice” if three things are shown.

The three things a patient must prove

Under § 31-9-6.1(d), a claim requires a showing:

“That the patient suffered an injury which was proximately caused by the surgical or diagnostic procedure”;
“That information concerning the injury suffered was not disclosed as required by this Code section”; and
“That a reasonably prudent patient would have refused the surgical or diagnostic procedure or would have chosen a practical alternative” if the information had been disclosed.

The third element uses an objective test, a reasonably prudent patient, not what this particular patient says now. And the expert affidavit filed with the complaint must state that the injury was proximately caused by the procedure and “was a material risk required to be disclosed under this Code section”.

What must be disclosed

For a covered procedure, § 31-9-6.1(a) requires the patient to be “informed in general terms” of:

the diagnosis requiring the procedure;
its nature and purpose;
the material risks, “generally recognized and accepted by reasonably prudent physicians”, of infection, allergic reaction, severe loss of blood, loss or loss of function of any limb or organ, paralysis or partial paralysis, paraplegia or quadriplegia, disfiguring scar, brain damage, cardiac arrest, or death, which, if disclosed, “could reasonably be expected to cause such prudent person to decline”;
the likelihood of success;
“the practical alternatives to such proposed surgical or diagnostic procedure which are generally recognized and accepted by reasonably prudent physicians”; and
the prognosis if the procedure is rejected.

A risk outside that list does not fit the statutory claim, even if it was serious.

Who discloses and how

The “responsible physician” must make sure the disclosure happens and consent is obtained, but the information may be given “through the use of video tapes, audio tapes, pamphlets, booklets, or other means of communication or through conversations with nurses, physician assistants, trained counselors, patient educators, or other similar persons” the physician knows to be capable of communicating it (§ 31-9-6.1(c)). A hospital employee who takes part in those conversations at the physician’s request is treated, for this statute only, as the physician’s agent.

Written consent matters for proof. A signed written consent that discloses the required information “in general terms” is “rebuttably presumed to be a valid consent”; if consent was required and not obtained in writing as the statute requires, “no presumption shall arise as to the validity of such consent” (§ 31-9-6.1(b)).

When no disclosure is required

Section 31-9-6.1(e) lists exceptions, including:

an emergency as defined in § 31-9-3;
a procedure “generally recognized by reasonably prudent physicians” as not involving a material risk;
a written request by the patient or an authorized person not to be told; and
a prior complying consent within 30 days as part of the same course of treatment (or, if obtained on hospital admission, valid for 30 days or the length of the hospital stay for that purpose, whichever is greater).

Who can be sued

The action may be brought against the responsible physician, a hospital, ambulatory surgical center, professional corporation, or partnership “of which the responsible physician is an employee or partner and which is responsible for such physician’s acts”, or both (§ 31-9-6.1(d)). Because it is a malpractice action, the malpractice deadlines and pre-suit rules apply; see the pre-suit requirements for a Georgia malpractice case and the Georgia malpractice limitation period.

Was the procedure one the statute covers?
Which injury occurred, and is it one of the listed risk categories?
What does the signed consent form say, and who explained it?
Would a reasonably prudent patient, told of that risk, have refused or chosen an alternative?
Does an exception, such as an emergency, apply?

Sources

O.C.G.A. §§ 9-11-9.1, 31-9-3, 31-9-6.1 (the 2025 amendment by SB 153 made a punctuation change in subsection (e)(4)).

General information about Georgia law as of October 2026. It is not legal advice, and reading it does not create an attorney-client relationship.