Understanding Informed Consent and Medical Malpractice

Before performing any kind of medical procedure or treatment, a doctor is required to inform their patients about the potential risks involved.

In the event that informed consent is not provided ahead of time, and the patient suffers injury or damages as a result, then there may be grounds for a medical malpractice claim.

The following guide breaks down the different factors that make up informed consent, when it’s required, and what exceptions can be made.

What is informed consent?

It’s no secret—most medical procedures or treatments involve a certain level of risk. Whenever a patient goes in for an appointment, it is the doctor’s responsibility to provide them with the necessary information and risk factors involved.

This allows the patient to decide whether or not it’s in their best interest to undergo the treatment, procedure, or testing. Informed consent is the process of providing essential information to the patient and getting the patient’s agreement to a certain medical procedure or treatment.

As part of this process, doctors usually require patients to sign a consent form detailing the potential risks of any given treatment or procedure. However, signing a consent form alone does not necessarily prove that a patient gave informed consent.

In addition to providing the forms, the doctor must discuss the procedure and risks with the patient directly. Before moving forward, the patient must demonstrate that they understand the risks they face to the best extent possible.

Whether or not a patient gave their informed consent to a treatment is crucial in medical malpractice law. If a doctor does not get a patient’s informed consent, and the patient would not have opted for the treatment if they knew about the risks, then it’s possible a claim can be made against the doctor for medical malpractice.

What is medical malpractice?

Medical malpractice occurs when a health care professional or provider neglects to deliver appropriate treatment, omits to take appropriate action, or provides substandard treatment that causes harm, injury, or death to a patient.

Typically, medical malpractice or negligence normally involves some form of medical error. This can include—but is not limited to—misdiagnosis, surgical error, incorrect medication dosage, poor health management, as well as below-standard treatment or aftercare.

Medical malpractice law makes it possible for patients to recover compensation for any harm that results from substandard treatment.

A medical malpractice lawyer can help you determine how to sue a hospital for malpractice and if your case is viable for court.

What risks must be disclosed?

Contrary to common belief, a doctor is not required to explain every possible outcome resulting from a given procedure or treatment. They are, however, expected to disclose the risks that are deemed most important or would have the most adverse effects.

Typically, the importance of risk is determined by two different standards:

1. Would another doctor have disclosed the risk?

By this standard, an injured patient looking to file a medical malpractice claim must hire a medical expert to testify that other competent doctors would have informed the patient of this particular risk.

On the other hand, to defend their position, the doctor being sued will need to also provide an expert to testify that another competent doctor would not have necessarily disclosed this risk to the patient.

This particular defence comes down to whether or not the risk was statistically likely enough to make disclosure relevant. Even though a specifically bad outcome has a remote possibility of happening, it does not mean that disclosure is required.

In the moment, the doctor must use their best standard judgment to determine how relevant a risk is to the patient’s informed decision. It is then up to the patient and their malpractice lawyer to determine how to sue a hospital for malpractice by providing proof that proper disclosure did not occur.

2. Would a normal patient have made a different decision if informed of the risk?

With this second standard, the question becomes whether or not a normal patient, with the same medical history and conditions as the plaintiff, would have changed their mind about the treatment if the risk was disclosed.

Under this standard, a doctor is required to also inform a patient of realistic alternative treatments, even if the doctor only recommends a single treatment.

In order to prove this argument, a medical expert testimony is not always necessary. However, in cases where the medical facts are complex, an injured plaintiff may want to hire a professional medical expert to testify regardless.

When helping a patient determine how to sue a hospital for malpractice, a medical malpractice lawyer will advise whether an expert is needed or not.

When is informed consent not required?

Although the informed consent rule is essential to the application of proper medical care, there are some instances when it’s not required. These include:

1. Emergencies

In a medical emergency, life-saving decisions typically need to be made quickly. When these situations occur, a doctor may not have enough time to describe the risks involved because they must act fast.

When this happens, a patient cannot sue for lack of informed consent, even if they would not have gone through with the chosen treatment plan or procedure.

2. Emotionally frail patients

If a situation occurs where the doctor knows that a patient is so distressed that they will refuse medically necessary treatment, then informed consent may not be required in order to proceed.

In addition, if disclosing too many details about the potential risks of a necessary procedure will cause an already frail patient to become more upset, then the doctor may be able to withhold some information.

A doctor can choose the amount they disclose based on the individual particularities of each patient. However, they must later be able to provide a clear (and medically relevant) justification for why the risks were not disclosed.

What if the doctor performs a different procedure?

In the case where a doctor performs an alternative procedure than the one a patient gave informed consent for, the patient may be able to make a claim. This is true even if the procedure was successful, but the patient did not provide informed consent.

There’s only a claim in this particular situation if the additional or different procedure was a mistake or can be proven to be medically unnecessary.

If a doctor fixes an additional serious medical problem they encounter while in the middle of a different procedure, then the patient most likely does not have an effective claim for informed consent.

A medical malpractice lawyer can assist patients in building their claim and provide expert advice on how to sue a hospital and/or physician for malpractice.

How to Make an Informed Consent Claim

Sommers Roth & Elmaleh can help you discover how to sue a hospital and/or physician for malpractice. Our expert malpractice lawyers have been helping patients who have experienced injury or suffering due to medical malpractice for more than 40 years.

If you feel that you have been the victim of medical malpractice, then contact Sommers Roth & Elmaleh at 1-844-777-7372 or reach out to us online.