What is “informed consent?”
An often litigated issue in cases involving medical malpractice is informed consent. Informed consent is usually a separate cause of action that accompanies a claim for medical negligence. The general rule is that a physician or other medical practitioner is not permitted to provide medical care or surgical intervention unless the patient consents. There are exceptions to this rule and although the law is not universal in each state, there are generally two main elements that need to be satisfied in any claim for lack of informed consent. First, did the medical practitioner sufficiently apprise the patient of the reasons for the procedure, the nature of the procedure and the risks/benefits inherent therein, such that the patient or his/her family had the information necessary to make an informed decision; and secondly, whether the patient actually gave consent to undergo a particular procedure.
In many states, if a doctor operates on a patient without the patient's consent, or unnecessarily expands the scope of a procedure without the prior consent of the patient, that doctor may be liable for a battery in addition to medical malpractice. In certain jurisdictions where the consent is framed in terms of achievement of a specific result, as opposed to defining a particularized procedure itself, the physician may be authorized to do what is reasonably necessary and appropriate to the achievement of that result.
Is written consent required?
Actual written consent may or may not be required, depending upon the laws of the particular state at issue. In some states, consent may be given orally, or even implied by one’s intentional submission to a procedure. Consent may also be implied if the procedure arises out of an emergency, where the patient is unconscious, a minor, or otherwise incapable of consenting to treatment and no family is available in a timely manner to consult.
What risks must be disclosed?
Even where the patient may have "consented" to the procedure, however, that consent must be "informed." This requires the patient be made aware of the risks and benefits that a reasonable person would need to know in order to make an informed decision as to whether to undergo the particular procedure. The medical practitioner does not have to provide you with every known risk, only those that have a reasonable likelihood of becoming a complication. To establish whether a risk should have been disclosed will be based on expert testimony. The test in many states, however, is not only that a material risk was not disclosed, but whether had that risk been disclosed a reasonable person would not have consented. Additionally, there must be a causal link between the failure to disclose and some identifiable injury.
Why you need experienced attorneys
Consent/informed consent cases are often times difficult cases to prove and not all attorneys will avail their clients of the claim. It is common for the patient to remember being told one thing, while the physician has a different memory altogether. Where the medical records do not chart or document fully that consent was obtained, it becomes a credibility battle for the jury to decide. To proceed with a claim for lack of informed consent based on medical malpractice, you need experienced attorneys who understand the relationship between your injury and the risks disclosed. Willoughby Doyle has extensive experience and expertise litigating “lack of informed consent” claims in multiple jurisdictions. We have lectured on this topic to physicians and attorneys alike.
If you have a medical malpractice claim and believe your physician failed to provide you with the information necessary to make an informed decision to undergo a procedure, contact Willoughby Doyle for expert representation.
Statute of Limitations
The laws of informed consent vary in each state. In addition, there are time limits (statute of limitations) within which you must file any legal action. If you do not file legal action within the statute of limitations in your state, you may forfeit your right to recover damages. If you believe you have a claim for lack of informed consent, do not wait. Seek professional advice immediately.
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