What Is Informed Consent in Relation to Medical Malpractice?
Posted on behalf of Gordon & Partners on Dec 06, 2018 in Medical Malpractice
Patients have the right to certain information before undergoing medical treatment. This allows them to provide informed consent before receiving medical care. Informed consent communicates to a patient the benefits and risks associated with a particular course of treatment. If a health care provider fails to obtain a patient’s informed consent and causes injury, the patient may have the right to pursue compensation for medical malpractice.
If you believe that your health care provider failed to obtain your informed consent, the experienced West Palm Beach medical malpractice attorneys at Gordon & Partners can help. We can review your legal options during a free case consultation.
Understanding Informed Consent
Informed consent is giving permission to a health care provider to proceed with recommended medical treatment. Patients in the U.S. are expected to play an integral part in their health care delivery.
Health care providers must inform patients about the positive and negative aspects of proposed medical treatment so that they can make informed decisions regarding these options. For a patient to give informed consent, he or she must be told about the following information:
- The diagnosis
- The proposed course of medical treatment and the rationale for it
- The benefits of the proposed treatment
- The risks of the proposed treatment
- The risks and benefits of not undergoing the treatment that is recommended
- Alternative options to the proposed treatment and their risks and benefits
Many health care providers will protect themselves by having patients sign an informed consent form that details this information.
When Informed Consent is Not Needed
Informed consent is not necessary in all situations. Some exceptions when informed consent is not necessary include:
Routine Medical Treatment
In some situations, medical procedures are routine and non-invasive, so informed consent is not necessary. For example, a nurse checking vital signs or a doctor using a stethoscope to hear a heartbeat do not usually require informed consent. Routine tests or standard treatments may not require informed consent.
In emergency situations, there may not be adequate time or opportunity to get informed consent. Additionally, the patient may be unconscious and be unable to provide informed consent for treatment to help save his or her life. Even if the patient was a prior patient, the doctor may have to exceed the scope of the patient’s consent to take reasonable steps to treat the patient’s condition.
Providing Patients with Care Who Cannot Give Consent
Some patients cannot give consent, including minors and mentally disabled individuals. Patients with mental disabilities may not have an understanding of the diagnosis or other information. If the person has a guardian, this person should be consulted for consent.
Parents can typically give informed consent for their minor children. Some minors may be considered sufficiently mature to make a decision about their health care and certain medical treatments associated with sexual activity, mental health and substance abuse.
Harm to Patient
In some situations, if a health care provider knows the patient will be distressed and will be harmed by having a discussion with the doctor, the doctor may be able to proceed with necessary treatment without first acquiring informed consent.
Proving Medical Negligence
To establish that a health care provider did not obtain informed consent, you must be able to prove the following elements of negligence in a medical malpractice claim :
- The health care provider had a duty to get your informed consent before performing a medical procedure
- The health care provider failed to obtain your informed consent
- You would not have consented to the medical treatment if you were properly informed of the risks
- You suffered an injury due to the treatment or procedure that was connected to the lack of informed consent
Contact Gordon & Partners for a Free Consultation
If you were injured by negligent medical care, a dedicated medical malpractice attorney at Gordon & Partners is available to assist. We can discuss your legal options for pursuing compensation during a free consultation.
We work on a contingency fee basis, so there are no upfront fees to worry about. You only pay us if we help you recover compensation for your case.