As summer approaches and clinical schedules grow busier, it is a good time for Kentucky physicians to pause and revisit the fundamentals of informed consent. Much like preparing for a long summer journey, informed consent requires clarity, communication, and planning before moving forward. Under Kentucky law, informed consent is not simply a box to check or a form to sign. It is an ongoing process designed to ensure patients understand their options and can make informed choices about their care.
Kentucky’s informed consent requirements are set out in KRS 304.40320, which provides that consent is “deemed to have been given” when a physician follows accepted medical practice and when a reasonable patient, based on the information provided, would understand the nature of the proposed treatment, the medically acceptable alternatives, and the substantial risks and hazards involved. The statute also recognizes a limited emergency exception, allowing physicians to proceed without consent when it cannot reasonably be obtained. Outside of true emergencies, however, informed consent remains an essential part of the care process, regardless of time pressures or seasonal demands.
During the summer months, schedules tend to tighten, elective procedures increase, and clinics often operate at a faster pace. These conditions can create fertile ground for rushing through informed consents. Many claims arise not from poor medical care, but from missed opportunities to clearly communicate serious, life-altering risks such as paralysis, loss of function, permanent disability or death, even when those risks are unlikely. Courts and juries often view these outcomes as risks a reasonable patient would want to consider before proceeding, regardless of their statistical rarity. Even consent obtained immediately before a procedure when the patient is anxious, medicated, or under time pressure often becomes a litigation issue. Patients who recall feeling rushed or overwhelmed can undermine the credibility of the consent discussion even when the discussion technically occurred. Additionally, when the actual treatment differed from what was discussed, absent an emergency, a renewed consent should be obtained.
Furthermore, Kentucky courts have made clear that informed consent must be evaluated from the patient’s perspective. The focus is not solely on whether the physician believed the discussion was adequate, but whether the patient received information sufficient to make a meaningful decision. In practical terms, this means physicians must ensure their explanations are understandable to a reasonable patient, not a reasonable physician. Highly technical explanations are not enough if the patient cannot grasp the significance of the risks and alternatives discussed.
Documentation continues to play a critical role in defending informed consent claims, but it should be viewed as sunscreen rather than shade; it helps protect, but only when applied correctly. Consent forms support the record, but they do not substitute for documenting the substance of the conversation. Brief entries noting that “risks were explained” carry far less weight than notes reflecting what risks were discussed, what alternatives were considered, and whether the patient asked questions. Well-documented conversations help demonstrate that consent was informed, not assumed.
It is also important to remember that informed consent in Kentucky is not limited to surgery. It applies to nonsurgical treatments, medications with significant side-effect profiles, and repeat or interventional procedures. Similarly, while the emergency exception allows physicians to act when immediate care is necessary, it is narrowly construed. If a patient is alert, capable, and time allows, even in urgent settings, informed consent discussions should occur whenever reasonably possible, with clear documentation explaining the circumstances.
So, remember, most informed consent claims do not arise from bad faith or poor medicine. They arise from communication gaps, documentation issues, and assumptions about what patients understood. Clear, patient-centered conversations supported by documentation remain one of the most effective ways to reduce both legal exposure and patient dissatisfaction.
For an Informed Consent Check List go to www.sturgillturner.com/our-insights/informed-consent-checklist-2026
Christine L. Stanley is a healthcare law and medical negligence defense attorney with Sturgill, Turner, Barker & Moloney, PLLC. She can be reached at cstanley@sturgillturner.com or 859.255.8581. This article is intended as a summary of state and/or federal law and does not constitute legal advice.