Let’s set the scene: Unfortunately, you’ve been having some ongoing health issues, but your doctor tells you there is a procedure to fix it. The doctor explains to you what the procedure is, the likely outcome, and any risks of performing it. You think about the risks but decide you would like to get it done for the sake of your health.
After signing some forms to show that you agree to the risks, the doctor then performs the procedure on you. When you wake up from the anesthesia, you begin to notice some health problems and pains that the doctor had not warned you about beforehand.
Could this be a form of medical malpractice arising from a lack of informed consent? By law, it could be, but it also may not.
What Is Informed Consent?
In basic terms, informed consent is the agreement between the doctor and patient to perform a medical procedure after the patient has been informed by that doctor of what the procedure is, the potential results of said procedure, and the risks associated with it.
The keyword to focus on here is “informed.” There is no general standard for how much information a doctor needs to explain to the patient before they have been properly “informed.” In many cases, a patient is considered informed if the doctor disclosed all information about the procedure that is significant enough to affect their decision on accepting the procedure or not. This means a doctor could still be found to have given informed consent even if they didn’t explain some of the smaller risks to the patient.
It’s also important to note that a patient signing a consent form does not equate with informed consent. The doctor must also discuss the procedure with you in order for it to be considered proper informed consent. So, don’t be discouraged if you signed paperwork and something happened to you because you still might have a valid claim.
When is it Acceptable to Not Provide Informed Consent?
In some cases, informed consent is not required to perform a procedure. This is mostly limited to emergencies, such as performing a lifesaving procedure on an unconscious patient. However, it could also apply when the patient is emotionally fragile, meaning the doctor knows the patient will reject the treatment because of distress or severe anxiety.
When Would it Be Considered Medical Malpractice?
So, what would be considered a valid claim for medical malpractice because of a lack of informed consent? It varies by state, but the most important aspect of the case is if other doctors would have disclosed the risk or not in the same situation. If most other doctors would not have disclosed the risk, it would not be considered medical malpractice. If other doctors would have told the patient, it would then be considered malpractice. To confirm this in a court of law, a medical professional will be hired to confirm or deny what the doctor said or did.
Are you concerned that you or a loved one has been affected by a lack of informed consent or another form of medical malpractice? Then contact an experienced medical malpractice lawyer who can get you the money that you deserve. Here at Rob Levine & Associates, we have a team of experienced medical malpractice attorneys that are ready to fight for you. For more information on our Fee Free Policy and how to contact us, visit RobLevine.com.