From time to time in this blog, we refer to “informed consent” in the context of health care and medical malpractice. But what does informed consent mean, and what happens if a patient fails to give it?
If you have ever undergone surgery or another serious medical procedure, you were probably asked to sign a form in advance. That form stated that your doctor had given you the relevant information you needed to make a decision about whether or not to have the procedure and that you were agreeing to the procedure in light of that information. In a nutshell, that is informed consent.
But informed consent is, and should be, more than just getting a signature on a form. All surgery, and most medical procedures, carry some risk. As a medical patient, you have bodily autonomy. In other words, you have control over your body and the risks you are willing to subject yourself to. If you do not have complete and accurate information, you cannot make a reasoned decision and are robbed of that control.
Informed consent should be a process, not just a task to cross off on a pre-surgical checklist. Ideally, informed consent involves back-and-forth communication between you and your doctor about such things as:
Your doctor doesn’t have to present you with every possible outcome, no matter how remote. He or she just needs to give you the information a reasonable person would need to make a decision.
While informed consent is required in most cases, there are certain situations in which doctors are not required to obtain it. At one end of the spectrum, if the patient is unconscious and will die without treatment, care providers are not required to obtain the patient’s informed consent. At the other end of the spectrum, patients are not expected to sign a consent to such minor procedures as having their blood pressure, weight, or temperature taken.
In some situations, a patient may be conscious and at least theoretically capable of giving informed consent, but swift action must be taken to save the patient’s life. In those cases, informed consent is not required. Elderly patients with dementia, or patients who are unable to legally consent to a procedure due to a disability cannot give informed consent. However, if such a patient has a legal guardian or an agent under a medical power of attorney, that person may give informed consent on the patient’s behalf.
Even if a doctor has communicated perfectly with a patient and the patient has given truly informed consent, the doctor may still be liable for medical malpractice. To give an example, let’s say a patient needed to have their left leg amputated due to a cancerous tumor in the bone. The doctor explains the diagnosis to the patient, discusses why amputation is the preferred treatment, and explains what the patient can expect from the procedure and recovery period. The patient has a chance to ask questions, and ultimately consents to the surgery. However, on the day of the surgery, the doctor mistakenly amputates the healthy right leg instead of the left leg with the tumor.
While the patient in that scenario consented to the recommended procedure, the doctor was negligent in a way that had nothing to do with the consent, and a malpractice claim would not be based on lack of informed consent. The patient is not barred from a malpractice claim because she signed a consent.
Sometimes failure to obtain informed consent does, itself, constitute medical malpractice by a medical professional. Your relationship with your doctor creates a duty of care on the doctor’s part. The doctor is obligated to give you the information you need to decide to have a treatment, and to obtain your consent to administer that treatment. You may be able to recover for medical malpractice if:
It can be difficult to establish a lack of informed consent to a procedure. An experienced medical malpractice attorney knows how to investigate and gather evidence in support of these cases. If you believe your doctor failed to give you the information you needed to make a reasoned decision about medical treatment, we invite you to contact Huegli Fraser to schedule a consultation.
The information in this blog post is provided for informational purposes only and is not intended to be legal advice. You should not make a decision whether or not to contact a qualified medical malpractice attorney based upon the information in this blog post. No attorney-client relationship is formed nor should any such relationship be implied. If you require legal advice, please consult with a competent medical malpractice attorney licensed to practice in your jurisdiction.
© 2021 Huegli Fraser PC