Doctors and other health care providers must talk with their patients and provide specific information before performing certain medical procedures or treatments. The failure to take this step can lead to a medical malpractice claim by the patient. In this article, we'll cover:
Most medical procedures or treatments involve some risk. It's the health care professional's responsibility to give the patient information about a particular treatment option so the patient can decide whether to move forward with it. This process of providing essential information to the patient and getting the patient's agreement is called "informed consent."
Doctors and other care providers typically require patients to sign a consent form detailing the risks of any given course of treatment. But the patient's signature alone does not necessarily prove that the patient gave informed consent. The provider must actually discuss the procedure and risks with the patient. And the patient must understand, to the extent possible, the risks and the range of outcomes they face.
Not every health care treatment situation requires a doctor or other health care professional to get a patient's informed consent. According to the U.S. Department of Health and Human Services, procedures and scenarios that require informed consent include:
A doctor doesn't have to tell a patient about every possible thing that might happen as a result of a procedure or treatment. Most states use one of two standards to determine what information and risks must be disclosed and discussed with the patient:
In states that use this first standard, an injured patient who is suing a doctor must hire a medical expert to testify that other competent doctors would have informed the patient of this risk. The doctor being sued will also hire an expert to testify that a competent doctor would not necessarily have disclosed the risk to the patient.
In the end, the crux of the argument is usually over whether the risk was statistically likely enough to make disclosure worthwhile. Simply because a particular bad result is a remote possibility does not mean it must be disclosed -- even if that bad result comes to pass.
In states using this second standard, courts ask whether a normal patient, with the same medical history and conditions as the plaintiff, would have changed his or her mind about the treatment if the risk was disclosed. Unlike states following the first standard, a doctor must also inform a patient of realistic alternative treatments, even if the doctor only recommends one treatment.
Medical expert testimony is not always required in states following this rule. But if the medical facts are complicated, an injured plaintiff might want to use an expert anyway.
In a medical emergency, the patient might be unconscious or there may be no time to describe the necessary care and the risks involved and a physician must act quickly to save a life. A patient cannot usually sue for lack of informed consent in this situation, even if they would not have allowed the treatment, as long as:
If a doctor or other care provider doesn't get a patient's informed consent before embarking on a course of care, and the patient would not have opted for the treatment if they knew about the risks, the patient may be able to sue the doctor for medical malpractice.
The key here is showing that:
Learn more about proving a medical malpractice case.
To learn more about informed consent and other aspects of the provider-patient relationship, check out Your Rights as a Patient, from WebMD.
If you're thinking about taking legal action against a health care provider for their failure to obtain your informed consent, it's probably time to discuss your situation with an experienced legal professional.
Medical malpractice cases are notoriously tough to win. Even an experienced medical malpractice lawyer often needs to rely on a network of medical expert witnesses and consultants to help build the best case for their client. From there, putting together the best case means: