Anyone who has suffered an injury or lost a loved one because of a suspected error by the treating physician may wish to review the case with an experienced medical malpractice attorney. Such a review can evaluate issues such as informed consent and the likelihood of recovering damages. Contact Johnson Attorneys Group for your free, personal case review 1-800-208-3538.
Simply Having the Patient Sign a Form is Not EnoughInformed consent usually involves the patient reading and signing a form that details the risks of the upcoming procedure or treatment. However, signing a form is not always sufficient proof that informed consent has been given. The doctor is also required to discuss the details of the procedure as well as its specific risks. The patient must have a good understanding of the risks posed by the procedure. Without this understanding, the patient can’t make a good decision about whether or not they should have the procedure. If they undergo the procedure without a reasonable understanding and are injured, they likely have a medical malpractice case.
What Types of Risks Should be Discussed?While doctors don’t have to spell out every little minute detail of the procedure, the ones related to health risks are required.
The following are two key standards are often considered:
- Is It a Risk Other Doctors Would Have Disclosed? With this standard, an individual who is suing their doctor for malpractice must hire a medical expert to verify through their testimony that other competent doctors would’ve disclosed this risk. The argument is typically regarding whether the risk was common enough and statistically likely enough to make its disclosure essential.
- Would Most Patient Have Decided Differently If Properly Informed of the Risk? Courts may also ask whether a typical patient with the same medical conditions and history would have rejected the procedure if the risk had been properly disclosed to them. Medical expert testimony may be required to shine a light on complicated details of the case.
There are a few exceptions where informed consent is not required:
- Emergency Situations. In an emergency medical situation, there may be no time to talk about the risks involved. In situations where physicians must act quickly to save a person’s life, the patient cannot sue over lack of informed consent.
- Emotionally Distressed or Fragile Clients. If a patient is likely to refuse required treatment during a medical crisis, the doctor may not be required to get informed consent. For example, surgery for a life-threatening brain tumor may have a risk of paralysis, but if not getting the surgery will most surely result in death, the doctor is allowed to avoid talking too much about the procedure’s risks.