Patient Consent Negated by Hypothetical Acceptance of Surgical Risk

In a case involving a patient who suffered nerve damage during surgery for a radius fracture, the court determined that even though the surgeon failed to prove adequate specific disclosure regarding the risks, the claim for damages based on lack of consent was negated because the patient would have consented hypothetically. The court reasoned that the necessity and urgency of the operation, following the failure of conservative treatment, combined with the relatively minor nature of the specific risk involved (a nerve injury that experts deemed slight), strongly indicated that the patient, acting reasonably under the circumstances and given the prior successful surgery of the same type, would have consented even if fully informed, thereby curing the lack of explicit consent under articles 394 ff. of the Code of Obligations.