Informed Consent and Lack of Informed Consent
When you’re ill or injured, you trust trained and licensed physicians to recommend the treatments and procedures you need to heal. However, you have the right to make the ultimate decisions when it comes to your medical care.
Unless you’re a medical professional yourself, you’ll probably need someone to help you understand the possibilities and risks associated with potential procedures before you can make an informed decision. Unfortunately, some physicians fail to obtain proper informed consent.
If your doctor administered a particular treatment without properly informing you of the risks, you might be entitled to compensation from a medical malpractice claim. Contact the Serious Injury Law Group today to learn more about your options in a free initial consultation.
What Is Informed Consent?
Nearly all medical procedures, treatments, and tests have some element of risk involved. When doctors recommend certain procedures, they have a responsibility to educate their patients about the nature and risks of the procedure so patients can decide whether to undergo treatment themselves. The process of educating patients and obtaining their permission to perform specific procedures is known as obtaining informed consent.
The principle behind informed consent is that everyone of sufficient age and mental acuity has the right to decide what happens to their body. In his academic journal article “The Parameters of Informed Consent,” Dr. Raab uses the following informed consent definition to state when this occurs and a legal claim may arise:
- The physician did not present the risks and benefits of the proposed treatment and alternative treatments
- The patient would have declined the treatment if they had full information
- The treatment was a substantial factor in causing the patient’s injuries
When doctors seek informed consent from patients, they typically ask patients to review and sign special forms outlining the risks of a recommended procedure. However, it’s important to understand that a patient’s signature alone is not necessarily proof of informed consent. Physicians must discuss and explain the procedure and associated risks with a patient and ensure the patient understands the discussion well enough to obtain informed consent. Additionally, a claim for the failure to obtain informed consent can arise even if the doctor used appropriate treatment and carried it out skillfully.
What Is the Purpose of Informed Consent?
The purpose of informed consent is to ensure that patients who are considering medical procedures fully understand the procedures and the risks involved before they agree to undergo treatment.
When a physician fails to obtain informed consent from a patient who would not have opted to undergo a particular treatment with full knowledge of the risks, the patient may have grounds to sue the physician for malpractice based on the lack of informed consent.
What Information Must Be Disclosed?
When doctors discuss the potential risks of medical procedures with patients, they are not expected to list anything and everything that could happen. Physicians are simply required to inform patients of risks that are considered “important.”
One way to tell whether a risk is significant enough to disclose is by considering whether other doctors would disclose a particular risk in a similar situation. If a competent physician under the same circumstances likely would have informed a patient of certain risks, there’s a good chance the risks are notable and should be disclosed.
Another way to tell if a risk should be disclosed is whether a typical patient would change their treatment decision if they had information about it under similar circumstances.
When Is Informed Consent NOT Required?
There are two main exceptions to the informed consent rule. The first involves emergencies. Suppose a patient is suffering from a life-threatening illness or injury. In that case, the attending physician may not have time to discuss the possible risks of life-saving treatment in advance.
The second involves patients who are too distressed or emotionally fragile to thoughtfully or carefully consider the information about a procedure. If a physician has reason to believe that a patient’s tendency to become upset or frightened may lead them to refuse necessary procedures, they may not be required to obtain informed consent. However, if a physician lacks informed consent or fails to disclose certain risks, they must demonstrate the reason for the lack of consent or disclosure.
What to Do If You Weren’t Given Proper Informed Consent
If you recently underwent a medical procedure and believe your doctor did not obtain your informed consent, you can start protecting your rights by:
- Contacting an experienced medical malpractice attorney who can evaluate your case and help you determine whether you may have grounds for a medical malpractice claim
- Gathering evidence such as notes or recordings from doctor’s visits or statements from eyewitnesses
- Requesting your medical records as evidence of your condition and the treatments, tests, or procedures you underwent
- Preparing and filing a medical malpractice claim with the help of your attorney
How to Prove Lack of Informed Consent and Liability
If you were injured after receiving medical treatment without informed consent, you could potentially use the following types of evidence to support your medical malpractice claim and prove liability:
- Your medical records – Your medical records will include information about the providers you saw, your diagnostic test results, the treatment you received, and any consent forms you signed.
- Witness testimony – Statements from friends, family members, or even other medical providers who were present with you at appointments can provide valuable proof of the information you discussed with your doctor.
- Second opinions – A second opinion from another licensed physician can demonstrate what other competent doctors likely would have done if they had been in the same position as your doctor.
Possible Compensation for Injuries Stemming from Lack of Informed Consent
One of the potential consequences of not getting informed consent from patients is the possibility that an injured patient can file a medical malpractice claim against the healthcare provider and obtain compensation for their damages.
With a successful medical malpractice claim, you could receive the following types of compensation for lack of informed consent injuries:
- Medical expenses – Past, present, and future medical expenses related to the treatment of any injury or illness you sustained because of an unwanted procedure
- Lost wages – Reductions in your take-home pay or lifetime earning capacity if an unwanted procedure rendered you incapable of returning to work
- Pain and suffering – The subjective costs of the physical pain, mental anguish, and emotional suffering you endured because of an unwanted procedure
Contact Serious Injury Law Group Today
At the Serious Injury Law Group, our attorneys are tough negotiators who will fight aggressively to secure fair compensation for your losses. If you were injured during a medical procedure that was performed without your informed consent, we want to hear from you right away.
Our firm is committed to being responsive and respectful of your time. We can meet with you wherever is most convenient and provide a thorough and honest evaluation of your case. Contact us today to get started with your free initial case review.