Doctors have an obligation to make their patients aware of any uncertainties that can happen during a procedure they undergo, or a treatment that they receive. This is known as ‘informed consent’. Without an informed consent the doctor cannot go on with a procedure, but if they do and the patient gets injured, then the patient will be allowed to file a claim against the doctor.
Listed below will be what makes up an informed consent, when does it have to be applied, and if there are any exceptions to the rule.
Defining Informed Consent
There are always risks associated with procedures and treatments. The MD is legally responsible to tell the patient of these risks that can happen and let them decide if they want to continue with the procedure or treatment. This is where the informed consent takes place.
Most of the time, a patient has to sign a paper of these known risks, but just because they signed the paper, it does not mean that an informed consent took place. There has to be a face-to-face discussion about the potential risks, and an understanding from the patient’s part.
Determining if there was an informed consent is vital in a malpractice claim. If the patient was unaware of the risks and if told about them would have not proceeded with the procedure, then those involved can be held accountable.
What Must Be Told to the Patient
Only the most important risks must be addressed to the patient, not everything that could happen. But this is where the question “what is important?” takes on many meanings. To determine what is important or not, one of the two questions are used in every state:
Would these risk have been addressed by another doctor?
A medical expert must determine whether another doctor would have told the patient of the potential risk. The defendant will hire their own expert and testify how another doctor would not have told the patient of the potential risk. The main point of the argument is that is statistically addressing the risk was worth it or not.
Would another patient have decided differently if made aware of the risks?
A patient with the same exact medical conditions and history is asked the question if they would have changed their mind to go along with the procedure or treatment if the doctor were to have addressed the risk. Under this standard, the doctor has to notify the patient of alternative treatments. The advice of a medical expert is not usually required here unless it becomes a complicated situation.
Instances Where You Do Not Need Informed Consent
Sometimes there will be moments where a doctor does not need the patients informed consent, and those are the following:
During an emergency: When there is an emergency, there is a lack of time in explaining all the known risks that could occur. The doctor has to quickly react in order to save the patient’s life. If the patient would not have allowed the treatment during these circumstances, they cannot sue regardless of the fact.
When a patient is very emotionally fragile: If the doctor knows that a patient is so emotionally overwhelmed that will cause them to refuse a procedure or a treatment that is in other words required to save their life, then the doctor might not need an informed consent. Ax example would be if a life threatening tumor in the brain needs to be removed, but by removing it, the patient could suffer severe risks such as, paralysis.
This also applies to a patient becoming swamped with stress if too much detail is explained to them. In this case, the doctor is able to hold back some information from the patient. The doctor determines how much information to tell or not to tell the patient, but they need to explain why they decided not to disclose it to the patient.
Doctor Executing a Different Procedure
What if you gave informed consent for procedure 1, but then procedure 2 was performed? In this case, the patient can sue because there was no informed consent for procedure 2. The patient can still sue even though procedure 2 was successful.
If procedure 2 was performed because of a mistake, or because it was not necessary to begin with, then those are the means for a claim.
If the doctor is performing procedure 1 and while doing so encounters a grave medical condition, they can perform procedure 2 on the patient to remove that problem without having gotten the informed consent from the patient. For example, a mother goes in for a C-section, but during the C-section, the doctor notices a dermoid cyst on one of her ovaries and removes it because it can cause her complications further in life because these cysts tend to grow.
Don’t Wait Another Day
Were your informed consent rights violated with no viable explanation? We are masters with cases that revolve around informed consent. Your rights should be respected, unless absolutely necessary, and even then, sometimes medical malpractice happens. Just recall that medical malpractice claims need to be done so in a certain time. Hurry and call us or come face-to-face with our team of medical malpractice lawyers a competent legal representative.
