When you or a loved one needs life-saving surgery or treatment, we trust our doctors to fully explain the options, help us understand the potential risks, and obtain our permission before beginning a course of treatment. This permission is called “informed consent.”
If doctors and medical professionals fail to uphold standards during surgery or treatment, you may have a medical malpractice claim. Continue reading to understand more about informed consent and how it affects your medical malpractice claim.
Informed Consent
Most medical procedures carry at least some element of risk. Because of this, medical professionals must discuss the potential risks and benefits of a given procedure with the patient. The patient must have an opportunity to ask questions and will usually then be asked to sign a written form stating that the patient understands the risks and consents to the treatment.
However, informed consent is about more than receiving a patient’s permission to perform treatment. Doctors have a legal obligation to make sure the patient fully understands all the available options to make an informed decision. The medical provider must discuss the following with the patient:
- The reason for the treatment
- What will happen during the treatment
- The risks and benefits of the recommended treatment
- The likelihood of the treatment working
- The risks and benefits of alternative treatments, if any
- The consequences of declining the treatment
Doctors must present this information in a way that the patient can understand. Failure to take into account the patient’s ability to understand medical advice may be considered medical malpractice.
In addition, consent must be voluntary. A doctor should never pressure you into agreeing to a procedure you’re unsure about or don’t completely understand. Patients who are unable to make medical decisions on their own must have a representative present who is legally able to give consent on their behalf.
When is Informed Consent Required?
While certain medical procedures, such as routine physicals assume implied consent, many forms of treatment require a medical provider to gain a patient’s explicit consent. According to the U.S. Department of Health and Human Services, these include the following:
- Most surgeries, even if not performed in a hospital
- Most complex or advanced medical tests and procedures, such as biopsies, endoscopies, etc.
- Cancer treatments that include radiation and/or chemotherapy
- Most vaccines
- Certain types of blood tests, such as genetic testing
- Any high-risk medical treatment
There is an exception, however. In the case of an emergency, medical professionals are legally allowed to provide life-saving care without acquiring consent, even when it includes one or more of the above procedures. Typically, you cannot sue a medical provider for failing to obtain consent in an emergency situation if the treatment was necessary, and delaying care would have posed a risk to your life and safety.
Informed Consent and Medical Malpractice
A failure to obtain the necessary consent outside of an emergency situation can be considered medical malpractice.
Informed consent involves more than signing a form. You cannot give informed consent if a doctor fails to fully explain a procedure or the risks involved. Because it is not always realistic for a medical provider to mention every possible risk for every procedure, courts will often use the following standards to decide if a failure to disclose a risk rises to the level of malpractice:
- Would most competent doctors have mentioned the risk?
- Would the patient still have agreed to the procedure if informed of the risk?
Highly experienced medical malpractice attorneys can help determine if you have a case and see if any of these standards apply to your medical malpractice claim. They will also secure expert medical witnesses to demonstrate the extent of your injuries and how your medical team fell short of the accepted standards of care.
Contact Experienced Medical Malpractice Attorneys
Medical malpractice claims can be incredibly complicated due to a labyrinth of state and federal laws and potential exceptions. If you’ve been injured as a result of a medical procedure, you may be wondering if you can still file a medical malpractice claim, even if you signed a consent form. The skilled attorneys at the Fitzgerald Law Firm will help you understand your rights, obtain documentation, and secure the necessary expert testimony. Our firm holds the record for the largest verdicts for personal injury and wrongful death ever upheld on appeal in Wyoming.
If you have questions about a medical injury or you’re unsure if you gave informed consent to a medical procedure, contact the Fitzgerald Law Firm today.