Lack Of Informed Consent Can Be Medical Malpractice

Medical Malpractice Mistakes

A medical malpractice case can be based on the failure of your doctor to inform you adequately about the medical procedure or treatment he or she has proposed.  As the patient you have the right to make the decision as to what is done to your body.  If you don’t have the right information you will not be able to make a good and educated decision regarding whether or not to go ahead with a treatment plan.  If you have been injured during treatment, and you were not given the right information, you may have a medical malpractice case.

Consent means that your doctor has given you information regarding a potential course of medical treatment and you agree to it.  Consent can be given verbally or by simply showing consent, such as by nodding your head.  There are many states that require written consent.  In New York, the statute regarding informed consent can be found in New York Public Health Law § 2805-d.

However, it is not just enough for you to sign your name or just say “Yes.”  You must give your informed consent.  You have to be told about and need to understand many things prior to starting the treatment, including:

  • The name and qualifications of the doctor performing the procedure.
  • Your medical condition.
  • Why the procedure is being proposed.
  • The risks involved with the procedure.
  • Alternatives to the proposed treatment or procedure and the risks involved.
  • The chances of the procedure being successful.
  • The expected recovery time.
  • The approximate cost of the procedure and if it will be covered by health insurance.

The doctor must also give you a chance to ask questions and to discuss things with your family if you choose.

During the procedure or treatment, the doctor cannot do more than what you have consented to.  Only if there is a medical necessity or emergency can the doctor take reasonable actions to preserve your health.  Beyond that, he or she cannot presume your agreement to different or additional treatment.

Even if you have signed an informed consent form that does not mean that you can’t sue your doctor or the hospital for malpractice.  If the doctor goes beyond the consent given, it could be malpractice, just as if he or she didn’t do what they were supposed to do.

There are some situations where informed consent is not necessary, such as:

  • Emergency situations, such as when you are unconscious.
  • Routine non-treatment procedures, including reflex testing or listening to your heartbeat.

It is not just enough to prove that your doctor did not obtain your informed consent.  There must also be a connection between the lack of informed consent and your injury.  In order to prove this you must show that had you had the right information:

  • You would not have consented to the medical treatment, and
  • The medical outcome would have been different.

But what do you think?  I would love to hear from you!  Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@fishermalpracticelaw.com.  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.

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