Understanding Informed Consent and Medical Malpractice

Medical procedures can come with rewards. But they also come with risks. One way to protect patient rights during medical care is informed consent. Informed consent ensures you fully understand the treatments or procedures you undergo, including the potential risks, benefits, and alternative treatments.

If there’s a bad result after overlooking informed consent, this lack of consent can lead to medical malpractice allegations. Talk to a medical malpractice lawyer to understand your legal rights if you think you have a medical malpractice claim.

What Is Informed Consent?

Medical professionals have an ethical and legal obligation to obtain your consent before most forms of medical treatment. Often, a care provider will sit down with you to explain the treatment options, side effects, success rate, and risks. They may give you this information via video tapes, audio tapes, pamphlets, or booklets. Health care professionals must give you enough information about the proposed treatment and alternative treatments. This way, you can evaluate the risks and your options and ask questions. This is informed consent.

However, not everything must be discussed. Your doctor doesn’t have to tell you about every possible outcome. Only important risks must be disclosed.

Procedures that are invasive or have serious side effects require consent before they can take place. Treatments or procedures that require written consent include:

• Anesthesia
• Surgical procedures
• Medical device placement
• Vaccines

Some laboratory tests also require written consent, but not all do.

As part of the informed consent process, your informed consent must be on record. You’ll probably need to sign a form agreeing to the treatment or medical procedure. Hospitals use consent forms at several points during patient treatment.

Legal Requirements for Informed Consent

State law governs informed consent. As a result, the legal requirements vary. There are generally several common elements, including that you:

• Have the legal capacity to provide consent
• Receive an explanation or diagnosis of your condition
• Get an explanation of the proposed treatment, including the significant risks, benefits, and the likelihood of success
• Are informed of treatment alternatives, including risks and benefits
• Provide your voluntary consent

To be legally capable of providing consent, you generally must be 18 or older. If younger than 18, the minor’s parent or guardian provides consent.

Some states require a signed document indicating your informed consent, while others only require verbal agreement. But in all cases, health care providers have to keep some record of the process.

States use one of two standards to evaluate whether there’s been informed consent:

• Would a competent doctor have disclosed the risk?
• Would a reasonable patient have made a different decision if informed of the risk?

Exceptions To Informed Consent Requirements

In some situations, informed consent is not required.

Noninvasive routine procedures don’t require informed consent. Examples include using a stethoscope to listen to your heart or using an otoscope to look in your ear canal.

Health care providers may proceed without obtaining informed consent during medical emergencies if a patient is unconscious or cannot provide consent and urgent treatment is necessary.

A legal guardian may give consent on a patient’s behalf when they can’t make informed decisions because of cognitive impairment or a mental health condition.

Generally, parents or guardians must consent to medical treatment for minors. There are exceptions, such as in cases of reproductive health, mental health services, or emergencies.

Consequences Of Failing To Obtain Informed Consent

A health care provider’s failure to get a patient’s informed consent is generally viewed as negligence. Suppose your doctor fails to obtain your informed consent and you are injured. In that case, you may be able to sue the doctor for medical malpractice. Lack of informed consent or inadequate consent is a common charge in medical malpractice cases.

Steps To Take if Your Informed Consent Rights Are Violated

If your doctor didn’t give you the opportunity to give informed consent and medical harm occurred, you can get a second opinion.

You could also contact the hospital’s patient advocacy department. Many medical facilities have a department that helps patients advocate for themselves.

Talk to a medical malpractice lawyer. A lawyer can explain your options and your legal rights. They can explain whether it’s best to file a complaint with a governing medical board or state regulatory agency. They can also advise whether to move on to a civil lawsuit.

Whatever you decide, be aware that medical malpractice lawsuits have deadlines. The statute of limitations varies from state to state. It ranges from one year to five years.

Case Examples of Lack of Informed Consent

Informed consent has several benefits. Clear communication is important for patient rights. It also supports patient autonomy and helps to keep doctors out of legal trouble. However, when health care providers fail to meet this requirement, unanticipated harm, confusion, and breach of trust can result. Below are three examples of informed consent violations.

Failure To Disclose Risks

A patient agrees to a surgical procedure to remove a benign tumor. The doctor does not inform the patient about the potential risk of nerve damage. After the surgery, the patient is partially paralyzed. They are shocked to learn that this is a known risk. If the patient had been informed, they might have chosen a less invasive treatment or sought a second opinion.

Performing Unauthorized Procedures

A surgeon discovers an unrelated hernia during a routine appendectomy. The doctor decides to repair it without the patient’s prior consent. While the procedure may have been medically beneficial, the patient did not agree to it. This unauthorized action violates informed consent.

Misrepresentation

A doctor recommends a clinical trial for a new cancer treatment. The doctor says it’s highly effective with minimal side effects. They, however, fail to disclose that the treatment is experimental and that most participants experience severe side effects. The patient agrees based on incomplete information. The patient’s ability to make an informed decision was compromised.

Need Legal Help?

Medical malpractice lawsuits are complex. Consent cases are case-specific. An experienced medical malpractice attorney can give you legal advice and help you determine whether medical negligence has occurred. They can also advise you on your next steps.