Can I sue if a known surgical risk was never explained before my procedure?

· 3 min read

If a recognized risk of surgery was never disclosed and that risk then materialized, Georgia law may allow an informed-consent claim. This kind of case does not depend on the surgery being performed badly. It rests on the patient having been deprived of information the law required before agreeing to the procedure.

The disclosure duty for surgery

For surgeries done under general, spinal, or major regional anesthesia and other covered procedures, O.C.G.A. § 31-9-6.1 spells out the material risks a patient must hear about beforehand. The statutory list reaches infection, allergic reaction, severe loss of blood, loss or loss of function of a limb or organ, and paralysis or partial paralysis. Alongside those risks, it directs that the patient learn the procedure’s nature and purpose, the practical alternatives, and the prognosis without it. Skipping a risk the statute names can found a consent claim once that very risk materializes.

What the claim must show

A consent claim is separate from a negligent-performance claim. The injury is not that the surgeon erred, but that an undisclosed risk occurred that the patient should have been warned about. The claimant generally must show that the required disclosure was not made and that the undisclosed risk is what caused the harm suffered. Causation in this setting often considers what a reasonable patient would have done had the risk been disclosed.

Because these questions involve medical standards and risk, expert testimony is typically required, and O.C.G.A. § 9-11-9.1 obliges the patient to file that expert’s affidavit when the complaint is brought. The consent forms, the medical record, and any materials the patient received are central evidence of what was and was not disclosed.

Limits and exceptions

The statute does not require disclosure in every situation. It contains exceptions, including for emergencies and for procedures not recognized as carrying a material risk. The covered procedures are also defined, so not every treatment triggers the statutory list. O.C.G.A. § 9-3-71 supplies the deadline, ordinarily a two-year limitations period nested within a five-year repose period.

The bottom line

A patient may sue in Georgia when a known surgical risk that the informed-consent statute required to be disclosed was never explained and that risk then caused harm. The claim focuses on the failure to inform, supported by the consent records and expert testimony, and is distinct from any claim about how the surgery was performed.

This article is for general educational and informational purposes only and is not legal advice. It does not create an attorney-client relationship, and Georgia law may change. For advice about a specific situation, consult a licensed Georgia personal injury attorney.

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