When a doctor performs a procedure on a patient without his or her informed consent, it could constitute medical malpractice. For the consent to be “informed,” the patient must know and understand all the critical details about the treatment, including the known risks. If the health care professional does not disclose this information, that failure to warn a patient of known risks could be a form of medical malpractice.
What Is Informed Consent?
According to the Joint Commission, which is a health care accrediting body in the United States, merely getting a signature on a form is not informed consent. The patient must have complete notice about the treatment, service, or care the health care provider is offering. Before starting the medical procedure or treatment, the doctor or provider must tell the patient:
- The nature of the procedure or care;
- Its risks; and
- Alternative options.
After receiving all the required information and understanding the risks versus the benefits, the patient has the right to refuse the treatment or consent to it.
Do I Have a Medical Malpractice Claim?
If you suffered a significant complication and you would not have agreed to have the procedure or treatment if you had known about that side effect, it might be malpractice. An attorney can evaluate your medical records and the facts of your case and let you know if you have a claim for compensatory damages.
How Does a Consent Form Impact a Medical Malpractice Case?
If the consent form failed to inform you of known risks, it could be medical malpractice. The consent form is the health care provider’s proof that they informed you of the nature of the procedure, the known risks, and the alternatives. It also serves as a reference for you, so you can confirm the details of what they told you.
For example, imagine your doctor recommended surgery to remove a brain tumor but did not disclose the known surgical risk of visual impairment because of the location of the tumor. You had the surgery and woke up with permanent visual impairment. In this case, you may be able to hold the doctor responsible for their failure to disclose the risk of visual impairment. The consent form should have disclosed this possibility.
What If a Doctor Did Not Explain the Known Risks of a Medication?
Although prescription drugs contain packaging information and insert materials, doctors cannot expect their patients to understand all the statements about side effects and contraindications. Before starting you on a drug, your doctor should talk with you about the known risks of the medication, so you can decide if the benefits are worth the dangers.
For example, before starting you on a drug to decrease your chance of having a stroke, your doctor should tell you if the drug will increase your chances of experiencing severe internal bleeding. If you suffer life-threatening gastrointestinal bleeding and your health care provider did not warn you about this possibility, you may have a claim for medical malpractice.
Can the Use of Medical Jargon Be Malpractice?
Medical professionals use their specialized terminology every day. Sometimes they forget that the typical person cannot always interpret what those words mean.
The person who explains the treatment to you should use words you can understand, not just medical jargon. You cannot appreciate the level of risk if they are using unfamiliar words. The consent form should also explain the procedure and the known risks using both the medical terminology and everyday words.
What If There Is a Communication Barrier?
If you are not fluent in English, the health care provider should provide a qualified, certified interpreter to explain the procedure, inform you of the risks, and answer your questions. You cannot evaluate the risks without understanding what the health care provider is saying to you. Your consent form should also be in the language you understand.
If you suffer from visual or hearing impairments, the health care provider should make accommodations so you can understand the information they are providing. Failure to do so can constitute malpractice.
How Can I Get Help With a Medical Malpractice Claim?
You should never feel blindsided by a medical side effect or complication that was an undisclosed known risk. At Newsome | Melton, our medical malpractice attorneys help people who have suffered devastating injuries from medical procedures or treatments.
Legal Information - News Articles
A new medical malpractice law in Florida is drawing criticism from many groups who allege the new law violates the privacy rights established in the federal Health Insurance Portability and Accountability Act, Bloomberg Business Week reports. On July 1, the day Senate Bill 1792 went into effect, five trial attorneys filed lawsuits against healthcare providers.Read More
House of Representatives Votes to Drastically Limit Medical Malpractice Cases At the end of June, the House of Representatives passed a bill to limit the amount of non-economic damages that can be paid out in medical malpractice cases to just $250,000. Non-economic damages compensate for the human aspects of an injury or death—including the lossRead More