Claims of medical malpractice are some of the most common in the U.S, with fatalities reaching 251,000 lives every year. One aspect of medical malpractice that may not receive the attention it deserves is informed consent. Understanding informed consent can shed light for victims who are dealing with medical malpractice suits. It may be used as a point to strengthen a medical malpractice case or to weaken it, depending on the circumstances.
Informed consent is a requirement that a physician must meet, which is to provide a patient with all the necessary information regarding a treatment before administering it. The precise legal definition may vary from one state to the next. A reasonable method must be used to present all the information that a patient needs to know.
The premise is that a patient who understands the risks of a particular treatment is capable of making an informed decision to accept those risks. It also gives a patient the right to refuse treatment if, after careful evaluation, he or she decides that the risks are too much. Informed consent gives the patient more power to make decisions regarding his or her treatment, and reduces a doctor’s exposure to liability. Informed consent lays out the ground rules for treatments that are permitted and those that are not.
In some instances, a patient may not be able to give consent to treatment. For example, if a person is unconscious when rushed to the hospital, an exception to the rule applies. Here the consent is implied, using the logic that, under normal circumstances, a patient would want to receive medical attention to save his or her life.
Another exception to the requirement involves mandatory tests. If the disease that a patient has is communicable, for example, or a mental illness that demands further examination, then informed consent is not required.
Consent is also not required if there is a risk of causing significant emotional or psychological damage to the patient if given troubling information.
Getting Valid Consent
A medical practitioner must ensure that the consent given by a patient is valid. This means that there can be no coercion from the physician or the institution to get a patient to give consent. In addition, the practitioner who is going to be responsible for administering the treatment should be the one to get the informed consent. There must also be a full understanding of the patient’s medical history when obtaining consent. The agreement that a patient gives should be for a specific procedure, and a healthcare provider cannot use it as a blanket agreement to pursue other treatment options.
The doctor must provide adequate information including the risks, advantages, necessity of the treatment, consequences of refusing it, and any alternative options, if available. There should be a chance for the patient to get clarification on different aspects of the treatment. A patient who is giving consent for treatment must have the mental capacity to understand and must be of legal age.
Lack of Consent
A medical malpractice case that involves a lack of consent takes on a different form than others. In this case, a physician may administer treatment or perform surgery without any problems or mistakes, but still face a medical malpractice suit. Take, for instance, a patient who requires an operation, but the surgeon fails to give information on a possible complication pertaining to the procedure. If the patient suffers the complications that the doctor failed to disclose, even though there was no medical mistake, the surgeon may still be liable. This type of medical malpractice case is not about the standard of care used in the administration of treatment or procedure, but the failure of prior warning.
If you believe that your right to informed consent was neglected by a medical professional, contact a lawyer, like a medical malpractice or personal injury lawyer trusts, today to discuss your options.