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.
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,
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
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.