Informed Consent and Medical Malpractice Claims

A physician must fully inform a patient about any risks involved in a proposed procedure or treatment before actually administering it. This is referred to as “informed consent,” and it plays a critical role in medical malpractice claims. If a physician fails to receive informed consent from the patient, and the patient suffers adverse effects, then the physician may be liable for any injuries (or deaths) that occur.

What is Informed Consent?

Medical procedures and treatments typically carry some risks. While these risks could be minor and rare, it is still the obligation of the treating physician to inform patients of possible risks, as well as the likelihood that they could experience them. Patients can then decide if the treatment plan is right for them based on those risks. Providing a patient with essential information regarding the treatment, then obtaining his or her consent, is the basis of informed consent.

Physicians will typically have the patient sign a consent form for treatment, which details all risks involved for the proposed procedure. Signing this form does not automatically constitute consent. The physician must discuss the procedure and any associated risks with the patient to receive informed consent. Also, the patient must understand those risks. If a patient signs the document, but was not verbally informed or completely aware of the risks, the physician could still be liable.

Determining if a patient has provided a physician with consent is critical in medical malpractice suits. If a physician does not have informed consent in a situation where the patient would not have opted for treatment if he or she knew the risks involved, the physician is liable for injuries and losses.

What Risks Must Be Disclosed to a Patient?

The physician does not have to disclose all risks – especially those that are minor or do not apply to the patient because of his or her health profile. However, there are two standards used to determine what should be disclosed when obtaining consent:

1. What Would Other Doctors Disclose? If a patient feels uninformed, the reasonable care standard will be used. The physician will be compared to others in the same practice and situation. It will then be assessed 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.
2. Would the Patient Have Consented? Most importantly, the patient’s likelihood to consent must be assessed. If the patient would not have consented had he or she known or understood the risks, then the doctor could be considered liable. If, however, the patient would have still consented despite those risks, the negligence is no longer an issue.

Were You Not Properly Informed?

If you were injured and not properly informed of the risks, you may be entitled to compensation. You will need to speak with a medical malpractice attorney regarding your potential claim. Contact Berkowitz and Hanna LLC today to schedule a no-obligation case evaluation. Call or contact us online to get started.