Case Evaluation

Lack of Informed Consent: Lack of Informed Consent

Lack of Informed Consent

Kevin O'Keefe

One type of medical malpractice is based on a doctor's failure to adequately inform you before a medical procedure. Without being adequately informed of the planned treatment, you cannot give an informed consent to proceed. In which case should there be a poor result and you're injured, you have the makings of a medical malpractice case.

Your right as a patient to determine what you want done to your own body was best explained by U.S. Supreme Court Justice Benjamin Cardozo when he said, "Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patient's consent commits an assault for which he is liable in damages."

Consent generally merely means that when youre to undergo a medical procedure, your doctor provides information about it and you agree to it. Although you may give consent verbally, by an act, which indicates the consent, or in writing, many states may now require written consent.

It isnt enough for consent for you to merely sign your name or say, "yes" to proceed. Your consent must be an "informed" consent. That means you must understand many things about the treatment before treatment begins.

A good written informed consent form would include (but does not have to):

  • Identification of the physician or surgeon who'll be performing the medical procedure
  • The physician or surgeons qualifications
  • Your present medical condition
  • The purpose of the proposed procedure
  • The risks involved in the procedure
  • The alternatives, including their risks, including non-treatment if that's an option
  • The chances of the procedures success
  • The expected length of recovery time
  • The approximate cost of the procedure and whether it will likely be covered by your health insurance
  • You must also have the opportunity to ask the doctor questions, and talk it over with family if you want.

Once youve given your written consent, the physician cant exceed the scope of the consent. Obviously, surgeons are going to have to take reasonable actions during surgery when they come upon the unexpected. However, the surgeon is not permitted to presume that you would have selected certain treatment if there had been ample time to obtain your consent without health risks or hardship to you.

Signing an informed consent form doesnt mean your doctor or the hospital cant still be held accountable for malpractice. It's not like saying: "I'll take the procedure as is." The doctor is still required to act within the required standard of care. informed consent may not be necessary:

  • In emergency situations, where you are unconscious or otherwise incapacitated
  • For doctor/patient diagnostic interactions that dont rise to the level of treatment (such as reflex testing or listening to your heartbeat with a stethoscope

When a patient cannot give informed consent due to unconsciousness or mental disability, medical personnel will sometimes ask a court to appoint a guardian or guardian ad litem to make informed consent decisions for the patient. Generally, parents can give informed consent for their minor children.

Legal Standards Regarding Informed Consent

Proving that a physician or surgeon failed to obtain informed consent is usually not enough to win a medical malpractice lawsuit.

There must be some causal relationship between the lack of informed consent and your ultimate injury. You must prove that had you been informed properly, you wouldnt have consented to the medical treatment and that their medical outcome would have been different.

Informed consent is a hotly contested issue in the courts, and laws differ in each state. So don't make a decision on informed consent, or for that matter any medical malpractice issue, without speaking with an experienced medical malpractice trial lawyer in your area.

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