Medical Malpractice

Lack of Informed Consent

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One kind of medical malpractice is based on a doctor's failure to adequately inform you about a proposed a medical procedure or treatment. You have the right as a patient to determine what you want done to your body.

Without the right information, you can't make a good, educated decision about whether to go ahead with the plan. If you're not given the right information and you're injured during the treatment, you may have a medical malpractice case.

Informed Consent

Consent merely means your doctor gives you information about a medical treatment and you agree to it. You may consent verbally or by an act showing consent - like nodding your head. However, almost every state has medical consent laws. Most of them require written consent.

It's not enough for you to merely sign your name or say "Yes." You must give informed consent. You need to be told about and understand many things before treatment begins, including:

  • The name of the doctor performing the procedure and his qualifications
  • Your medical condition
  • The purpose of the proposed procedure
  • The risks involved
  • Any alternative treatments or procedures and the risks involved
  • The chances of the procedure's success
  • The expected recovery time
  • The approximate cost of the procedure and whether it's likely covered by your health insurance

You must also have a chance to ask the doctor questions and to talk things over with family if you want.

Scope of Consent

Your doctor can't do more than what you've consented to. For sure, she may take reasonable actions during surgery when the unexpected happens and your health is at risk. But, absent a medical necessity or emergency, she can't presume you would have agreed to a different or additional treatment.

Signing an informed consent form doesn't mean your doctor or the hospital can't be liable for malpractice. It's not like saying: "I'll take the procedure as is." If the doctor exceeds the consent you gave, it may be malpractice, just as much so as if she didn't properly do what she was supposed to do.

When Informed Consent Isn't Necessary

Informed consent may not be necessary:

  • In emergency situations, such as when you're unconscious
  • For routine non-treatment procedures, such as reflex testing or listening to your heartbeat with a stethoscope

Who Can Give Consent?

When a patient is unconsciousness or has a mental disability and can't give informed consent, the doctor or staff may ask a court to name a guardian or guardian ad litem to give informed consent for the patient.

Generally, parents can give informed consent for their minor children.

How It Fits in the Case

Proving your doctor didn't get your informed consent isn't enough to win a medical malpractice lawsuit.

There must be a connection between the lack of informed consent and your injury. You must prove that, with the right information:

  • You wouldn't have consented to the medical treatment, and
  • The medical outcome would've been different

Informed consent is a hotly contested issue in the courts, and the laws differ in each state. So, it's best not to make a decision on informed consent, or any other medical malpractice issue, without talking to an experienced lawyer.

Questions for Your Attorney

  • Can a doctor legally perform a medical procedure on me if I don't give written consent?
  • What questions should I ask my doctor before a medical procedure?
  • What steps should I take if I am injured by my doctor and I never gave informed consent?
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