What is Informed Consent in a Medical Malpractice Case?

What is Informed Consent in a Medical Malpractice Case?

Posted By Maher Law Firm || 30-Jan-2018

When a patient visits a doctor and receives some form of treatment or has a procedure performed, he or she must fully inform that patient of all pertinent information regarding that procedure or treatment, a process which is known as “informed consent.” If the patient sustains an injury and the doctor did not receive informed consent from the patient, he or she might have a viable medical malpractice claim against the doctor or medical professional who should have obtained informed consent.

Informed Consent

Generally, almost any treatment or procedure will involve some risk, no matter how minor it might be. Therefore, it is the doctor’s responsibility to provide the patient information regarding the treatment or procedure. This will allow the patient to weigh the risks, possible side effects, and benefits to decide whether or not undergoing the treatment or procedure is in his or her best interest. Without this essential information, it is impossible for a patient to make these types of decisions.

The process of obtaining informed consent from a patient typically requires that patient to sign a consent form that details the risks of a treatment or procedure. However, this alone is not proof that a patient gave informed consent. A doctor must always discuss the procedure or treatment and its risks with the patient and that patient must understand the risks he or she would face as a result of consenting to it.

Why is informed consent so critical? If a patient is not informed of the risks associated with a procedure or treatment, goes forward with it, and is later injured, that patient could sue the doctor for medical malpractice. It is possible he or she might not have gone through with the treatment or procedure if made fully aware of the risks, but as a result of the doctor’s failure to provide the necessary information, the patient did not have a chance to make an educated decision.

Disclosing the Risks

Doctors are not expected to tell patients about everything that might occur as a result of receiving a particular treatment or procedure. Instead, they are expected and required to tell patients about the risks that are most important. To determine what risks are important and critical for a patient to be aware of, there are two different standards. The first standard is that, given the same situation, other competent doctors would have informed the patient of the risks. The second asks whether or not a patient with the same medical history and condition would have changed his or her mind if made aware of the risks.

Both scenarios require the testimony of a medical expert, especially since medical facts tend to get complicated in such cases.

When is Informed Consent Not a Requirement?

As is the case with most rules, there are exceptions to informed consent, including:

  • Emergencies: In cases where a physician must act quickly to save a person’s life, there might not be any time to describe the risks that are involved with a procedure. Under these circumstances, a patient cannot sue for lack of informed consent, regardless if he or she would not have accepted the treatment.
  • Emotionally Fragile Patients: If a patient is emotionally distressed to the point where he or she refuses necessary treatment, a doctor might not need to obtain informed consent. If a patient is suffering from a life-threatening brain tumor, for example, but the removal of it has risks that could frighten a patient, a doctor might not have to be explicit in stating the risks.

Medical Malpractice Attorney in Orlando

If a doctor failed to obtain informed consent prior to performing a procedure or administering a treatment and you sustained injuries, you might be able to sue him or her for medical malpractice. At The Maher Law Firm, we have represented medical malpractice victims for over 40 years. Let us guide you through the process and fight for the compensation you deserve.

Contact our firm today at (855) 338-0720 to schedule a free consultation with a knowledgeable member of our legal team.

Categories: Medical Malpractice
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