What is "informed consent"?
In the medical field, the term “informed consent” refers to a patient's right to information about a particular medical procedure before making informed decisions about their healthcare. For example, before surgery, the doctor is required by medical law and ethics to inform you about the surgical procedure, including its dangers, allowing you to decide whether or not to proceed.
What Happens If Informed Consent Is Not Given?
Failure to give informed consent is a crime under medical law. The healthcare provider might be held responsible if the patient is injured.
What Is the Importance of Informed Consent?
Having informed consent helps establish trust between the doctor and patient before a medical procedure. It makes patients feel comfortable while receiving treatment since they understand the risks involved. In addition, the doctor will not have to worry about being sued for not offering informed consent to the patient. In the end, it creates a win-win situation for both parties involved.
Are There Any Exceptions to the Principle of Informed Consent?
While it is important to have informed consent, certain situations make it impossible for healthcare providers to obtain consent from their patients before treatment. For this reason, there are certain exceptions to this legal concept.
Here are some examples:
The healthcare provider might not need to obtain informed consent if the patient is at imminent risk of serious harm and cannot consent to treatment. A good example of such a situation is when a patient arrives at the emergency room unconscious and with life-threatening injuries following a car accident. In that case, the healthcare providers in the emergency room do not necessarily need to obtain consent from the patient because, technically, they cannot obtain consent from an unconscious individual.
In other situations, patients may voluntarily waive consent, relieving healthcare providers of the responsibility of obtaining consent before a medical procedure.
Another exception to this legal concept is when a reasonably competent doctor would not expect that particular medical procedure to pose a material threat to the patient. This means that the patient would not be injured by the medical procedure under normal circumstances.
Lastly, informed consent might not be required when the surgical procedure cannot be foreseen. In other words, let's say the doctors discover a tumor in your body while conducting a particular surgical procedure. In that case, if they decide to get rid of the tumor to save your life, you may not be able to sue them for lack of informed consent. This is because, under normal circumstances, doctors would not expect to encounter the tumor during surgery.
Can I Still Sue a Healthcare Provider for Failure to Obtain Consent Even If the Medical Procedure Was Successful?
Yes, you may. A good example of such a situation is when your religion does not allow you to undergo certain medical procedures or get vaccinated. Therefore, if the medical provider knows or should have known that your religious beliefs do not allow that particular procedure but still perform it, you may sue them even if the procedure was successful.
It should be noted that in some jurisdictions, you may be able to sue a doctor for failure to obtain informed consent if the doctor did not disclose sufficient information about that particular medical procedure. This is especially true if you or your loved one got injured by the risks the doctor did not mention but knew about.
I Did Not Give Consent and Got Injured by My Healthcare Provider. What Should I Do?
Contact an experienced medical malpractice attorney right away if you or your loved one got injured by a medical provider who did not obtain your consent before a medical procedure.
How Can a Medical Malpractice Attorney Help in a Lack of Consent Case?
An experienced medical malpractice lawyer will review the specifics of your case to determine whether you have a valid case against the healthcare provider. If your case is valid, the attorney will walk you through the steps you need to follow to hold the other party responsible for failing to obtain your consent. This will include but is not limited to collecting evidence, filling out important paperwork, interviewing experts, reconstructing the incident, and interviewing witnesses.
What Do I Need to Prove in an Informed Consent Case?
In an informed consent case, you must prove the following four elements.
Duty: You must show that the doctor owed you a duty of care. To prove this, you must also show that other doctors in a similar situation would have provided a different standard of care.
Breach of Duty: You must prove that the doctor breached their duty of care. Here, the court will analyze whether other doctors with similar skills and diligence would have performed differently.
Causation: You must also connect the doctor's breach of duty to your injury. In short, you need to prove that you would not have been injured but for the doctor's negligent conduct.
Damages: Lastly, you will need to establish the existence of harm caused by the doctor's conduct. This means that you must demonstrate how the doctor's conduct injured you.
What Damages Can I Recover From an Informed Consent Case?
You may be able to recover two forms of damages in this kind of case: compensatory damages and punitive damages.
Compensatory damages are meant to compensate you for financial losses you suffered due to the doctor's negligence. On the other hand, punitive damages are meant to punish the defendant, in this case, the doctor, for their negligent actions, preventing such cases from arising in the future.
Contact Morgan and Morgan Medical Malpractice Attorneys
Medical malpractice cases are complicated. Given that Federal and state laws usually protect medical professionals, you need an attorney with powerful legal resources and a track record of winning these kinds of cases. At Morgan and Morgan, we have some of the most competent medical malpractice attorneys with access to powerful legal resources to fight for you. Bear in mind that we are the largest personal injury law firm in the country, serving clients from coast to coast for over three decades.
If you or your loved one has been injured due to a lack of informed consent by a medical practitioner, you might be entitled to compensation.
Fill out our free case evaluation form today to get started.