Does a consent form for surgery legally protect a surgeon/hospital from a malpractice lawsuit if the patient was told that what they were agreeing to was the opposite of what it actually was?
If a patient provided their consent to part of a surgery after being told that agreeing to it meant that they would retain a part of their body but the surgeon instead used their consent as authorization to remove that part of their body as part of the surgery, does the consent still stand?
Example: The patient had previously signed a consent form for a surgery which they understood from a prior conversation with the surgeon would involve excising a portion of their skin and replacing it with a flap graft of local skin. The consent form did not specify how much skin would be utilized or excised, only that the flap graft site skin would be used in the reconstruction.
After they had already signed the consent form, the patient received a phonecall from a nurse, who told the patient that they needed to provide their consent for removal of the flap graft-site skin in order for the surgery to proceed. They were told that this was just for legal acknowledgement that they understood that the skin would be operated on, would not retain its preoperative location, and would not be available for use as a graft in the future.
The patient provided their verbal consent over the phone while stating that it was for the purpose of using the skin for a flap graft. The nurse made note of their consent, and communicated it to the surgeon, but made no note or mention of the fact that the patient had specified that this was, to their understanding, to authorize the use of the skin for a flap graft.
In reality, the patient's consent was used to authorize the surgeon to excise the majority of the potential flap graft skin, which was then discarded. The skin that the patient had expected to be removed was left in place.
EDITed for specificity and clarification. I have done my best to describe the situation without any potentially identifying details.
Location: Massachusetts, USA