The duty of informed consent is yours, so the record should be too

Two recent court decisions reached the same conclusion courts have reached for decades. In Graw v. Eli Lilly (E.D. Mo. 2026) and Petty v. Schwartz (N.Y. Sup. Ct., Sept. 1, 2026), the courts said the duty to obtain informed consent belongs to the physician, not the drug or device manufacturer.

Surgeons know this. What I see across implementations is that the duty sits with the surgeon, but the record of the consent conversation is often thin. It's usually a signed form, a line in the note, and everyone's memory of a busy clinic day.

If the duty is yours, the documentation should be strong enough to back you up.

"It's a known risk" works best when you can show the patient knew

The same week, a Virginia jury returned a defense verdict for an orthopedic surgeon after a total knee replacement. The plaintiff alleged an arterial injury and nerve damage. One of the defense's arguments was that vascular injury is a known risk of the surgery.

That case was about negligence, not consent. But the phrase "known risk" does a lot of work in surgical cases. When questions come up about what the patient was told, the strongest position is being able to show that the risk was explained before surgery.

That's often hard to show. The surgery in the Virginia case took place in 2018, and the verdict came in 2026. After that many years, memories fade, staff move on, and the consent conversation becomes he said, she said.

What video consent adds

With video informed consent, every patient receives the same complete explanation of the risks, benefits and alternatives of their procedure. Nothing gets skipped on a busy day, and every patient hears the same thing.

The platform records when the video was sent and opened, and how many times it was watched. Patients and families can rewatch it at home before surgery day, when they're calmer and can think of the questions they want to ask. Some surgeons won't proceed until the video has been watched.

Barrow Brain and Spine in Phoenix uses informed consent videos for all of its surgical patients.

What it doesn't do

I want to be precise here, because it matters. Video consent doesn't replace the surgeon's conversation with the patient. A view log also doesn't prove on its own that the patient understood.

What it does is make that conversation better informed and better documented. Patients arrive having already heard the risks once, so the conversation can focus on their questions. If questions come up later, the consent record has a timestamp, not just a memory. That strengthens your documentation and helps reduce "he said, she said" disputes.

What surgical leaders can do this quarter

• Look at your consent record honestly. Pull a few recent surgical charts. What would they show about what the patient was told, and when?
• Standardize the explanation. Pick your highest-volume procedures and make sure every patient gets the same complete description of risks, benefits and alternatives.
• Give patients time. Send the explanation when surgery is scheduled, not on the morning of, so patients and families can review it at home.
• Keep the conversation. Use video to support the surgeon's discussion, not to replace it.

A question for you

What does your consent record show today beyond a signature?