What Is The Role Of Informed Consent In Medical Malpractice Cases?
One type of medical malpractice involves physicians or other health care professionals operating on a patient without that patient’s informed consent. The following article will discuss the role of informed consent in medical malpractice cases.
What is informed consent?
An informed consent claim is based on the idea that a patient would not have undergone a certain procedure had his physician informed him of the specific risks that harmed him as a result of that procedure. It is important to understand that physicians are not required to disclose every potential risk of a procedure to a patient. As such, courts typically use one of two possible standards to determine whether a doctor should have disclosed a specific risk to a patient. The first standard involves determining whether a competent doctor would have told the patient about the specific risk (which he should have if the risk was significant and somewhat likely to occur).The second standard considers whether a reasonable patient in the plaintiff’s position would have chosen not to undergo the procedure or treatment if they were aware of the specific risk that threatened them (under this standard, physicians are expected to inform patients about realistic alternatives to the recommended procedure or treatment).
When do lack of informed consent issues arise?
Lack of informed consent issues can arise is some of the following situations:
- When the consent form failed to identify the particular complication that the patient ended up experiencing
- When the complication that occurred was actually much more common than the consent form suggested
- When the physician’s explanations of the potential complications differed from what was explicitly stated on the consent form
Are there any exceptions to the informed consent rule?
Yes. Most emergencies do not afford physicians the time to carefully go over potential risks with a patient. In an emergency situation, a physician needs to operate immediately to save the life of the patient, regardless of whether or not the patient would have consented to the live-saving procedure. Additionally, there are also some situations involving patients who require certain non-emergency, life-saving treatment, but may choose not to consent to it because the risks are daunting. In these cases, some physicians may refrain from disclosing every specific detail of every possible risk so that the patient is not dissuaded from receiving this live-saving treatment. However, if questioned, the physician should be able to explain why he did not disclose these risks.
Is a lack of informed consent sufficient to bring a medical malpractice claim?
No. A lack of informed consent alone will not provide a valid basis for a medical malpractice claim. Rather, you will need to prove that in addition to your lack of informed consent, the physician was negligent (by failing to obtain your informed consent), and that this negligence resulted in some type of damage to you. As such, if there was no actual damage to you that resulted from the consent violation, there is no basis for a medical malpractice claim. Because it can be difficult to determine on your own whether or not your lack of consent constitutes a potential medical malpractice claim, it is recommended that you speak with a personal injury attorney regarding your specific situation.
Do You Have Questions about a Medical Malpractice Claim? Speak With A Personal Injury Attorney
If you have questions about a potential medical malpractice claim, please don’t hesitate to contact Pita, Weber & Del Prado. Our Miami personal injury attorneys will help you build a strong case and guarantee that you obtain compensation for your injuries.