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Personal Injury · Wrongful Death · Medical Malpractice

Consent and Disclosure in Medical Malpractice Cases

Acknowledging that a doctor or hospital made a mistake or provided negligent medical care is not an easy thing. No one wants to think that institutions existing for the express purpose of helping people maintain life and health would be that careless. Also, given the fact that people have to rely on the expertise and attentiveness of medical professionals in times of extreme vulnerability, realizing this trust was betrayed is often a painful experience. However, once these lapses in adequate and appropriate treatment are discovered, exploring the possibility of filing a medical malpractice lawsuit is next step in holding these professional accountable. One key issue that must be established at the outset of any medical malpractice suit is that the patient provided consent to the medical treatment, but discerning whether it was given is not always easy, especially if the patient is unconscious or otherwise incapacitated.

Further, all medical malpractice cases filed in Florida must go through a pre-investigation period where the health providers and their insurance companies have an opportunity to examine the facts of the claim and decide if they want to offer settlement or deny the validity of the allegations, which allows the injured party to then proceed to file a lawsuit in court. In order for the doctors and medical facilities to sufficiently investigate the basis of a malpractice claim, the law requires the injured party grant access to his/her medical records, which creates the reasonable concern about the extent of access given and how the information may be used. Determining the existence of consent may require examining the circumstances of the treatment recorded in a plaintiff’s medical records. Thus, looking at these two issues together may help those pondering a medical malpractice case better understand how doctors use a patient’s medical record to challenge the accusations against them.

Consenting to Treatment

First, a person must be physically and mentally competent before he/she can provide valid consent, but this legal rule provokes the natural follow up question of what to do when the patient lacks physical or mental competency due to an injury or illness. In these cases, an authorized person can give consent, such as a spouse, but when an authorized person is not available, the doctors must prove the following:

  • attempts by the doctor to obtain informed consent were in line with accepted medical practices; and
  • the patient would have elected to undergo treatment under the circumstances after learning from the doctor the about the pros and cons of the treatment, other alternatives and the risks involved.

Disclosure of Medical Records

When an injured party provides health care providers with a presuit notice about a claim of medical malpractice, it must include an authorization for the release of relevant medical records. Specifically, the authorization grants the named plaintiffs, their malpractice insurance providers, lawyers, experts and court officials access to records directly related to the claims of negligence and records for treatment the patient received from other physicians over the previous two years. The law limits how this information can be used to the following purposes:

  • to assist the defendants in the investigation and evaluation of the malpractice claim; and
  • to defend against any litigation.

Note that this authorization may be withdrawn at any time, but taking such action cancels the presuit notice and prohibits the injured party from proceeding with the case.

Meet with a Medical Malpractice Lawyer

Medical malpractice law is complex, and there is a short window within which this kind of legal claim can be made, so it is important to consult a medical malpractice lawyer as soon as there is any suspicion of substandard treatment. The lawyers at the Miami law firm of Pita Weber Del Prado want to help you hold the responsible doctors accountable for your injuries and offer free consultations. Contact us today.

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