The Role of Lack of Informed Consent in Medical Malpractice

Medical malpractice is a branch of negligence tort law. It focuses on the doctor-patient relationship. Doctors and other healthcare professionals must follow specific standards. When these standards are not followed and you, the patient, (or a loved one) is subsequently injured, you may need to contact a medical malpractice attorney.

A crucial subset of medical malpractice is informed consent. Lack of informed consent cases turn on whether the doctor or other healthcare professional had your consent prior to any medical care being given. 

Why? Because patient integrity and consent are the foundation of medical ethics. 

By law, a doctor cannot prescribe medication or perform surgery without your informed consent. As a patient, you need to understand the risks and benefits of a procedure in order to make an informed decision.

If you are not fully informed of the practicalities and consequences of a procedure and you are subsequently injured because of it, you may be able to sue your doctor for lack of informed consent medical malpractice.

What Is Lack of Informed Consent in a Health Situation?

Before a doctor or hospital can give you treatment or perform a procedure, they must obtain informed consent from you. You must understand what is being prescribed to you, the reason for it, its risks and benefits, and any alternatives to it. This will then give you all the information you need to give your informed consent to the treatment or procedure.

The notion of informed consent stems from a patient's right to understand and make decisions about any non-emergency treatment or surgery they may need. Generally, a doctor or other medical professional will both explain the treatment or procedure in question and will have you sign a consent form that describes the treatment or procedure.

Without this information, you cannot give informed consent to the treatment or procedure. If a doctor or other health professional continues with the treatment or procedure without this, you should contact a lack of informed consent attorney because you may have a claim for a medical malpractice lawsuit. 

Note, that in the event of an emergency situation, informed consent may not be feasible or possible. For example, if you suddenly cannot breathe on your own and need a ventilator, a doctor must act quickly without your permission.

What Must a Doctor Disclose in an Informed Consent Discussion?

The requirement of informed consent mandates that before you take a new medication or undergo surgery, your doctor will sit down with you and have a discussion regarding the treatment. This discussion gives you the knowledge you need to give your informed consent to the treatment. You have every right to agree to the treatment as you have the right to refuse it. 

In this conversation, your doctor or another healthcare professional must explain the following informed consent requirements:

• Diagnosis or medical condition 
• Benefits and risks of the treatment or procedure
• Alternative options (including their risk and benefits)

While a doctor does not have to explain every risk and alternative, they must inform you of the information that a reasonable person in your situation would consider to be important.

Every Foreseeable Risk and Potential Benefit of a Medical Procedure

A doctor or other health care provider must inform you of both risks and benefits of a procedure or treatment. To be fully informed of treatment, you have to know how you will be affected. Maybe there is a potential risk of a 40% mortality rate. This information plays an important role in your decision-making process. 

Further, every patient has their own medical history, which can make the treatment or procedure riskier for them than for someone with a different medical history. Your doctor must consider this when analyzing the risks and benefits of the treatment or procedure.

Any Alternative Medical Treatment

Your doctor must also tell you of any alternative medical treatments available. It is not enough that you understand all your medical conditions and the purpose and risks and benefits of a treatment plan. You must also understand what your alternatives are.

Maybe there are other treatments that are less effective but also less risky. Your doctor is obligated to inform you of those alternatives. Alternatives also include the option of doing nothing.

Only after these steps are taken can you make a decision and give your informed consent to a treatment or procedure. 

What Happens When the Informed Consent Process Isn't Followed?

The purpose of informed consent is for patients and their loved ones to understand all the options available to them. Some treatments and procedures have high risks and consequences. If the patient is not aware of them, then that means they did not have all the information to make an informed decision about their medical treatment.

When the informed consent process is not followed and the treatment is given or the procedure is performed, then the doctor has violated the patient’s right to bodily integrity. This can give rise to a cause of action to sue the doctor, hospital, or other medical professionals for medical malpractice. To be successful, your lack of informed consent attorney must prove that a reasonable person would not have consented to the procedure or treatment, had they been aware of the risks or existence of alternative treatments not disclosed to them.

Fatal or Severe Patient Harm Due to Negligence

A patient can be severely or fatally harmed during a procedure due to negligence. If you or a loved one was harmed and can prove that the doctor did not have your informed consent to operate, you may be entitled to damages.

Incorrect Surgical Procedures Resulting in Permanent Damage

Many surgical procedures have high-risk rates, such as heart surgery or a kidney transplant. You need to be aware of these risks and still want to proceed with the treatment out of your own volition. Having a doctor explain them is part of informed consent.

During surgery, a doctor can make a mistake. Or, they might do the wrong surgery. If this results in permanent damage, you may be able to recover significant damages by bringing a medical malpractice claim.

File a Medical Malpractice Claim With an Experienced Attorney

Your doctor is your lifeline when you are sick or have an injury. You rely on their knowledge and expertise, trusting that they will tell you everything and do everything possible to help you. Unfortunately, sometimes doctors fall short of that standard of care.

If you or your loved ones suffered permanent damage or were severely injured during a procedure and you believe you were uninformed of the consequences and risks of the procedure, you may have a claim for medical malpractice. You should contact a medical malpractice lawyer as soon as possible. 

The law office of Kennedy, Johnson, Schwab, & Roberge has extensive experience in lack of informed consent lawsuits. Our lack of informed consent lawyer will work to get you the maximum damage award you deserve. 

Contact our law office today. Don't delay. Contact us for more information.