Patients who seek out medical care are first and foremost, consumers. As a consumer of healthcare services, a patient has a right to know what they are signing up for when agreeing to a procedure. Understanding informed consent can be crucial in understanding whether you might be a victim of medical malpractice.
In Connecticut, a physician must provide the patient with the information which a reasonable patient would have found important for deciding whether to embark on a certain course of treatment. To that end, the law requires a physician to disclose 1) the nature of the procedure; 2) the risks and hazards of the procedure; 3) the alternatives to the procedure; and 4) the anticipated benefits of the procedure. The patient’s right to this information comes from a patient’s fundamental right to self-determination.
Informed consent is not there to scare patients. Instead, it is to protect patients from receiving treatments that go against their personal level of risk tolerance. Informed consent also protects the doctor. By retrieving informed consent, the doctor can now proceed without worry that a patient will sue later for a known and accepted complication.
According to the American Medical Association (AMA), six features are used to determine whether a patient has received informed consent:
Most patients do not realize that they have the right to informed consent – especially if they assume that the doctor is too busy to answer their questions before agreeing to a procedure. Sometimes, a patient may not be sure what to ask their physician, so they just accept the treatment plan that they are presented with. Other times, a patient may ask about the proposed treatment, but not be given accurate answers by the physician. This is why the onus is on the provider to disclose all relevant information. If a doctor fails to disclose this information, and the procedure goes wrong, a patient may have a malpractice case.
When a procedure goes wrong, if the doctor either did not actually obtain informed consent or did not adequately explain the risks, hazards, and alternatives of the procedure, the door has been opened to a medical malpractice claim. An experienced lawyer is crucial to asking the right questions when things go wrong. Did the doctor sugar-coat the risks of the procedure? Or was he clear and up front? Did the doctor downplay that less risky alternatives were available? Did the doctor conceal that the procedure was experimental or very new to the field? Did the doctor misrepresent his experience in using the surgical equipment?
If informed consent becomes an issue at trial, the “reasonable physician” standard will be used. The physician will be compared to others in the same practice and situation. The jury will then assess whether the doctor disclosed what other physicians would have disclosed. If the physician left out risks that other physicians would have disclosed for consent, he or she could be considered negligent. If, however, the physician disclosed similar risks that physicians would have disclosed themselves, there may be no liability.
Assuming the doctor failed to properly disclose the risks of the procedure, the question becomes: would the patient have chosen differently if properly informed? A doctor could leave out the complication risks of a life-saving procedure, but if that was the only procedure that could prevent someone from imminent demise, there is an argument that the patient would have chosen to undergo the procedure regardless of the new information. That said, if the undisclosed information would lead the patient to try different treatment options or just “wait and see,” the doctor’s negligence would be a cause of the harm.
There is a situation where a doctor must get “updated” informed consent. This is called the “change of circumstances” doctrine. If a patient consents to a procedure under a certain set of facts, but during the procedure those facts end up being wrong, the doctor may need to abort the procedure and get updated consent. For instance, suppose a diagnostic test show what looks like a dangerously large aneurysm that requires surgical removal, but once the doctor has begun surgery the aneurysm is actually much smaller and doesn’t require removal, the doctor must abort the procedure, inform the patient of the changed circumstances, and get updated consent. If the doctor ignores the changed circumstance, continues the procedure, and then the procedure goes wrong, there is malpractice because a reasonable patient who learned that the aneurysm was no longer a risk would not have wanted the procedure to continue.
At times physicians do not need informed consent and are not considered negligent. These examples include:
While informed consent is required, not all physicians obtain valid informed consent. At times a doctor will leave out details and give inadequate explanations – including potential risks – and treat a patient with consent. If you feel that you were not given the right information before agreeing or you never gave your consent for treatment, you may be able to sue that physician for malpractice.
To learn more about Connecticut laws surrounding informed consent, give us a call at Berkowitz Hanna. We can help you understand your legal options.