Utah Medical Malpractice Informed Consent

Utah Code Section 78B-3-406 governs informed consent in medical malpractice cases, requiring a patient to prove seven specific elements including that the health care rendered carried a substantial and significant risk of serious harm, that the patient was not informed of that risk, and that a reasonable prudent person in the patient’s position would not have consented had they been fully informed.

Last updated: July 2026

What is informed consent under Utah medical malpractice law?

Informed consent is a legal doctrine that requires health care providers to disclose material information about proposed medical treatments or procedures so that patients can make voluntary and knowledgeable decisions about their own health care. Utah Code Section 78B-3-406 codifies this doctrine and establishes the specific legal framework for informed consent claims in medical malpractice actions.

The statute begins with a presumption in favor of the health care provider. Under Utah Code Section 78B-3-406(1)(a), when a person submits to health care rendered by a health care provider, “it is presumed that actions taken by the health care provider are either expressly or impliedly authorized to be done.” This means the patient bears the burden of proving that their consent was not informed, rather than requiring the provider to prove that it was.

The informed consent doctrine is distinct from the standard of care in medical malpractice. A health care provider may deliver treatment that meets the accepted standard of care in every respect, yet still be liable for failing to obtain the patient’s informed consent if the patient was not properly advised of the risks. The focus is on the quality of the communication between provider and patient, not on the quality of the medical care itself.

What must a patient prove in an informed consent case in Utah?

Utah Code Section 78B-3-406(1)(b) lists seven elements that a patient must prove to recover damages in an action based on a health care provider’s failure to obtain informed consent. First, the patient must show that a provider-patient relationship existed. Second, the patient must prove that the health care provider rendered health care to the patient. Third, the patient must demonstrate that they suffered personal injuries arising out of the health care rendered.

Fourth, and critically, the patient must prove that the health care rendered carried with it a substantial and significant risk of causing the patient serious harm. This is not a requirement that the risk be common or likely, but rather that it be substantial and significant in nature. A minor or theoretical risk may not satisfy this element. Fifth, the patient must prove they were not informed of that substantial and significant risk.

Sixth, the patient must prove that a reasonable, prudent person in the patient’s position would not have consented to the health care rendered after having been fully informed as to all facts relevant to the decision to give consent. Importantly, Utah Code Section 78B-3-406(2) requires that this determination be made “using the viewpoint of the patient before health care was provided and before the occurrence of any personal injuries alleged to have arisen from said health care.” This prevents hindsight bias. Seventh, the patient must prove that the unauthorized part of the health care rendered was the proximate cause of the personal injuries suffered.

What are the defenses to an informed consent claim under Utah law?

Utah Code Section 78B-3-406(3) provides five affirmative defenses to a medical malpractice action based on alleged failure to obtain informed consent. The first defense is that the risk of serious harm that the patient actually suffered was relatively minor. This means the patient cannot recover for failing to be warned of a risk that materialized but was not considered substantial or significant under the statute.

The second defense is that the risk of serious harm to the patient from the health care provider was commonly known to the public. Health care providers are not required to warn patients of risks that are common knowledge, such as the risk of infection from surgery or the risk of bleeding from an invasive procedure. The third defense is that the patient stated, prior to receiving the health care, that they would accept the health care regardless of the risk or that they did not want to be informed of the matters to which they would be entitled to be informed.

The fourth defense allows a health care provider to use reasonable discretion as to the manner and extent to which risks were disclosed if the provider reasonably believed that additional disclosures could be expected to have a substantial and adverse effect on the patient’s condition. This is known as the “therapeutic exception” and recognizes that in some cases, full disclosure could actually harm the patient. The fifth and most common defense is that the patient or their representative executed a written consent that meets the statutory requirements of Utah Code Section 78B-3-406(3)(e).

How does a written consent form protect a health care provider?

A properly executed written consent form provides a robust defense to informed consent claims under Utah law. Utah Code Section 78B-3-406(3)(e) specifies that a written consent is a defense if it sets forth the nature and purpose of the intended health care, contains a declaration that the patient accepts the risk of substantial and serious harm in hopes of obtaining desired beneficial results, and acknowledges that the health care providers involved have explained the patient’s condition and the proposed health care in a satisfactory manner and that all questions have been answered satisfactorily.

When a written consent meeting these requirements has been executed, Utah Code Section 78B-3-406(4) shifts the burden to the patient. The patient must then prove either that the person giving the consent lacked capacity to consent, or must show by clear and convincing evidence that the execution of the written consent was induced by the defendant’s affirmative acts of fraudulent misrepresentation or fraudulent omission to state material facts. This is a difficult standard to meet.

The practical effect of this provision is that most informed consent claims in Utah will fail if the health care provider has a properly executed written consent form. Patients challenging such forms must present clear and convincing evidence of fraud, which is a significantly higher burden than the preponderance of the evidence standard that applies in most civil cases. This makes it essential for patients to carefully review and understand any consent forms they sign.

What is the difference between informed consent and battery in Utah medical cases?

Informed consent and battery are distinct legal theories that can arise from unauthorized medical treatment. Battery in the medical context occurs when a health care provider performs a procedure without any consent at all or performs a procedure that is substantially different from the one to which the patient consented. Informed consent, by contrast, arises when the patient consented to the procedure but was not adequately informed of the risks involved.

Utah Code Section 78B-3-406(1)(a) creates a presumption that actions taken by a health care provider are authorized. This presumption applies to informed consent claims but may not apply in the same way to battery claims where there was no consent at all. A battery claim would arise if a surgeon performs a different procedure than the one the patient agreed to, or if a provider treats a patient who has clearly refused treatment. These cases involve a complete lack of consent rather than a lack of informed consent.

The practical significance of this distinction lies in the damages available. In an informed consent case, the patient must prove that a reasonable person would not have consented if fully informed, and damages are limited to the harm caused by the unauthorized part of the treatment. In a battery case, the patient may be able to recover damages for the entire procedure, including any benefits received, because the treatment was entirely unauthorized. The specific facts of each case determine which theory applies.

Who can give consent for medical treatment in Utah?

Utah Code Section 78B-3-406(6) provides a comprehensive list of persons authorized to consent to health care not prohibited by law. These include any parent for their minor child, any married person for their spouse, any person temporarily standing in loco parentis for a minor under their care, any guardian for their ward, any person 18 years or older for their parent who is unable to consent, any patient 18 years or older, any female regardless of age in connection with pregnancy or childbirth, adults for minor siblings, grandparents for minor grandchildren, emancipated minors, minors who have contracted a lawful marriage, unaccompanied homeless minors 15 years or older for certain services, and minors receiving tobacco and nicotine cessation services.

The statute also provides at Utah Code Section 78B-3-406(5) that the act may not be construed to prevent any person 18 years old or over from refusing to consent to health care for their own person upon personal or religious grounds. This preserves the fundamental right of adult patients to refuse medical treatment even when such refusal may be harmful to their health.

Under Utah Code Section 78B-3-406(7), a person who in good faith consents or authorizes health care treatment or procedures for another as provided by the act may not be subject to civil liability. This protection encourages family members and others to make timely medical decisions for patients who cannot consent for themselves.

When should I discuss informed consent issues with a Utah medical malpractice attorney?

If you believe you underwent a medical procedure without being adequately informed of the risks, or if you signed a consent form that did not fully explain the substantial and significant risks involved, you should discuss your situation with a Utah medical malpractice attorney. Informed consent claims under Utah Code Section 78B-3-406 are complex and require proof of multiple elements, including the difficult burden of showing that a reasonable person in your position would not have consented. An experienced attorney can evaluate whether the procedure involved substantial and significant risks, whether you were properly informed, and whether any defenses such as a valid written consent form apply to your case.

About the Author: Stephen Honig is a legal content strategist who writes about Utah personal injury law and related legal topics. His work helps injury victims understand their rights and options under Utah law.

This article is for informational purposes only and does not constitute legal advice. Consult with a qualified Utah personal injury attorney for advice specific to your situation.