Dr Malcolm Linsell
Why do good clinicians still get sued? Increasingly, the answer lies not in the procedure itself, but in what patients say they did – or didn’t – understand before it.
Speaking at the Medico-Legal Congress in Sydney this month, specialist plastic surgeon Dr Malcolm Linsell said informed consent was becoming less about what was documented and more about what could be demonstrated, particularly after a poor outcome.
“Informed consent is not ‘I inform you and you sign it’,” he told delegates.
“The goal is not just disclosure of risk; it’s a shared understanding of the decision the patient is making.”
He pointed to emerging evidence that consent failures are a major driver of medico-legal risk.
“In the last couple of months, there was a report in the Journal of the International Society of Aesthetic Plastic Surgeons reviewing hundreds of complication cases, and informed consent was cited in more than 50%.”
Drawing on a case from his own practice, Dr Linsell described a patient who developed a known complication following breast reduction surgery – one that had been discussed in detail and documented in a signed consent form – but who later pursued legal action.
The experience, he said, reflected a persistent gap between documenting risk and proving that a patient had truly understood it. This gap was increasingly central to medico-legal scrutiny across clinical practice, he said.
Legal standard meets clinical reality
Under Australian law, clinicians are required to disclose risks that a reasonable person in the patient’s position would consider significant, a standard that places the patient, rather than the practitioner, at the centre of decision-making.
But in practice, Dr Linsell said, consent was often judged only after something went wrong.
“Consent is judged retrospectively after a bad outcome,” he said. “If the outcome is good, we’re not having this conversation.”
That retrospective lens creates a disconnect between what clinicians believe they have disclosed and what patients later recall or understand, particularly in elective procedures, where patients are choosing to accept risk rather than treating disease.
A complication explained and still litigated
In the case he described, the patient had been counselled about the risks over breast reduction surgery during a detailed consultation and had signed a multi-page consent form outlining potential complications, including nipple necrosis.
The consultation covered not only the procedure itself, but the post-operative course and possible adverse outcomes.
On the day before surgery, the patient confirmed she had no further questions.
The operation proceeded without incident.
Within a week, however, the patient developed nipple necrosis, a recognised but uncommon complication.
She remained under care for several weeks, with wound management and follow-up, and initial healing progressed reasonably well.
Two years later, legal proceedings were initiated.
For Dr Linsell, the case was both professionally and personally confronting and resulted in a settlement, despite the complication having been discussed in advance.
Reflecting on the experience, he said the issue was not whether the risk had been disclosed, but whether understanding could be demonstrated.
“I thought I had obtained consent,” he said. “But how do I show that the patient truly understood?”
From forms to processes
For Dr Linsell, the case marked a turning point; not because the complication was unexpected, but because the process he relied on to demonstrate consent, ultimately, proved insufficient.
A signed form, he said, did not mark the end of consent.
“Informed consent is not ‘I inform you and you sign it’,” he said. “It’s a process.”
That process must extend beyond disclosure to capture the reasoning behind a patient’s decision: why they are willing to accept risk in pursuit of a particular outcome.
“The hardest part to document is that space in the middle,” he said, “between risk and hope – understanding the risks and choosing to proceed”.
A staged model of consent
In response, Dr Linsell has moved to a staged approach, framing consent as a series of steps rather than a single event.
This includes initial education, consultation, a period of reflection, follow-up discussion, confirmation on the day of surgery, and structured post-operative review.
Each stage contributes to building a clearer record of decision-making: not just what was said, but how the patient engaged with that information over time.
It also creates multiple opportunities for patients to revisit risks, ask questions and reconsider their decision.
Where digital tools fit
Digital tools are increasingly being incorporated into that process, offering a way to standardise the way information is delivered while creating a more detailed record of patient engagement, he said.
Dr Linsell described using AI-based transcription tools to record consultations and generate structured summaries, which are reviewed, stored in the clinical record and shared with both the referring doctor and the patient.
“That records the complete consultation,” he said, noting it provides a contemporaneous account of what was discussed rather than relying on retrospective notes.
He has also introduced a digital consent platform, Consentic, which guides patients through procedure-specific information using animations and structured prompts, before testing their understanding through a series of questions.
Patients are required to confirm key risks before completing the module, with their responses recorded as part of the consent process.
“It’s actually testing the patient’s understanding,” he said.
Dr Linsell said these tools could improve consistency and reinforce key messages, particularly when patients revisited information over time, but should be seen as supporting, rather than replacing, clinician-patient discussions.
“Digital tools don’t replace a surgeon’s consultation,” he said. “But they can support education, documentation and consistency.”
While cosmetic surgery may sit at the sharper end of consent scrutiny, Dr Linsell said the underlying shift applies across all areas of medicine.
“I don’t think the legal standard has changed that much,” he said. “But surgical standards are changing.”
In particular, he said, some clinicians continue to rely on older models of consent centred on documentation, rather than patient understanding, which is a gap he warned may only become visible when outcomes fall short of expectations.