If a doctor performs an operation or another procedure on a patient in Maryland without consent, he or she may have grounds to sue the doctor or the hospital. Performing a procedure without consent may constitute medical malpractice because the doctor failed to inform the patient of the potential risks and the patient lacked all the information to make an informed decision about the procedure.
In many informed consent cases, a patient ends up injured, although this is not always the case.
Informed consent is very important. It forms the basis of the mutual trust between a healthcare provider and a patient. If a doctor fails to properly inform a patient about the possible implications of a medical procedure and the patient is injured or develops complications, the doctor may be sued, depending on the circumstances.
There is a good reason for informed consent. Patients should actively participate in their procedure with their doctors. Giving patients adequate information means they can play a major role in making decisions that are consistent with their own preferences, values, and future health outcomes. Physicians play an important role as educators in this process.
When things go wrong and a patient is injured after a doctor failed to warn them, the patient will likely feel betrayed by someone they trusted. If this happens, you should hire an experienced Maryland medical malpractice lawyer as soon as possible.
What Steps Should Medical Providers Take to Give Informed Consent?
According to the American Medical Association, the process of giving informed consent occurs when communication between a patient and a doctor results in the patient’s agreement or authorization to undergo a certain medical intervention. In seeking a patient’s informed consent, or the consent of a designated surrogate if the patient lacks decision-making capacity or refuses to participate in making decisions, doctors should:
- Assess the ability of the patient to understand the relevant medical information and the implications of various treatment alternatives and to make an independent, voluntary decision.
- Present information relevant to surgery and treatment of a condition accurately and sensitively in accordance with the preferences of the patient for receiving medical information. The physician should detail information about the following:
- The nature of the patient’s diagnosis;
- The type and purpose of the interventions the doctor is recommending;
- The potential risks, burdens and expected benefits of all relevant options including not having treatment.
In these cases, the doctor or healthcare providers must meticulously document the conversation relating to consent and the decision of the patient or a surrogate. Once specific written consent is provided, it should be included in the medical record.
What Risks Should be Disclosed in an Informed Consent Conversation?
A doctor, surgeon, or other provider does not have an obligation to tell a patient about every possible thing that could go wrong during a surgery or another procedure. In some cases, a complication may be very rare. The doctor can restrict the information to the risks that are important. This raises the question of how doctors know what risks are important. There are two key tests adopted by states. They are:
1. Would other physicians have disclosed the risk?
Many states ask whether other doctors would have disclosed a risk. Typically, an attorney for an injured patient must hire a medical expert who will testify that other competent doctors in the state would have informed the patient of the risk in question. The doctor who is sued for medical malpractice will also hire an expert. These cases become battles of experts.
Often the argument will come down to whether the risk was statistically likely enough to make it necessary for the doctor to mention it. If the bad result was a remote possibility of the procedure, other physicians would likely not have disclosed the risk.
2. Would a Reasonable Patient Have Changed His Mind?
A second standard looks at a normal patient with the same conditions and medical history as the injured party and asks whether disclosure of the risk would have led that patient to change his mind if the risk was disclosed.
Under this second standard, a doctor must also inform a patient of realistic alternative treatments for the condition, even if the doctor only recommends one treatment.
Maryland considers the question of informed consent from the perspective of a reasonable patient. The Maryland standard focuses on considering what a patient would need to be told to understand the decision at hand. The jury in a Maryland case considers the choice of treatment and any associated risks with the treatment from the perspective of a reasonable patient.
In Maryland, patients who are suing over informed consent are not required to procure expert medical testimony to establish the breach of the doctor’s duty of care. However, medical testimony is required to establish the kinds of risks inherent in any given treatment, the likelihood of success, how often a particular adverse outcome occurs, alternatives to the given treatment, and whether it would have been detrimental for the doctor to disclose information to the patient.
What Are Material Risks in Informed Consent Cases?
In Maryland, doctors and other medical providers need only to mention “material risks” to the patient ahead of a surgery or another procedure. This relates to what a reasonable patient believes is material.
Typically, healthcare providers in Maryland have drawn up specific policies that state which health interventions require a signed consent form pre-surgery.
Are there Circumstances When Reasonable Consent Cannot be Given?
There are times when it’s not possible for a doctor to give informed consent to a patient. They include:
Emergencies. During a medical emergency, a doctor typically lacks the time to describe the risks involved. The physician must act fast to save a life. A patient cannot sue over a lack of informed consent in an emergency situation, even if he or she would not have permitted the treatment.
Highly distressed patients. If a doctor or a surgeon knows the patient is so distressed that he or she is not going to give a rational answer and will refuse any necessary treatment, the doctor may not be required to obtain informed consent from the patient. An example might be a high-risk surgery to remove a tumor from a patient’s brain. The patient would likely die if the doctor did not act but the procedure carries elevated risks like paralysis. In such cases, an overly detailed description of the potential complications is likely to be unhelpful.
The doctor must consider the potential impact of his or her words on the patient. For example, giving too much information to a frail patient could increase the patient’s stress and anxiety and cause their condition to deteriorate. The doctor has leeway to decide how much information should be disclosed based on the characteristics of each patient. However, the doctor must be prepared to explain which certain information was not fully disclosed.
What Happens When a Doctor Performs a Different Procedure?
If a doctor or surgeon performs a procedure that is different from the treatment the patient consented to, the medical practitioner can be sued if the patient is injured.
In some cases, a lawsuit may be brought if the operation was successful. If a doctor operates on your right kidney to remove a growth on your left kidney, the patient may be able to sue for lack of informed consent as well as other medical malpractice issues.
A potential legal action is limited to a mistake on the behalf of the physician. If, for instance, a surgeon is performing a procedure on a patient with the proper medical consent and the doctor finds something else that needs attention during surgery and corrects that, the patient is unlikely to be able to successfully sue for lack of informed consent.
Does Informed Consent Remove Your Right to Sue?
The mere fact a patient has properly given informed consent does not prevent a medical malpractice lawsuit if the doctor has been negligent and harmed the patient.
Although a patient may have signed a form assuming the risks inherent in a procedure, he or she still has a right to sue if the doctor or hospital places the patient in danger. Patients do not consent to unacceptable risks during surgery or other procedures under the doctrine of informed consent.
When Can a Surrogate Decision Maker be Appointed for Informed Consent?
In Maryland, a “mentally competent adult” can give or withhold consent to medical treatment after receiving a fair and reasonable explanation of the proposed treatment. Under the Maryland Health Care Decisions Act of 1993, a patient is “incapable of making an informed decision” if he or she is:
- Unable to understand the extent, nature, or probable consequences of the proposed treatment;
- Unable to make a rational evaluation of the risk, burdens, and benefits of the treatment or a course of treatment;
- Unable to communicate a decision.
A surrogate may be appointed to make informed consent decisions on behalf of the patient. Material factors for a surrogate in making informed consent decisions include:
- the diagnosis facing the patient and the likely prognosis with and without treatment;
- any expressed preferences given by the patient about the treatment or withholding certain treatments;
- the reaction of the patient to the provision or withholding of a similar treatment to another person;
- the patient’s religious and moral beliefs and personal values;
- the patient’s behavior toward medical treatment generally;
- Concerns the patient has expressed about the effect on family or intimate friends if certain treatments were provided, taken away or withheld.
Factors like preexisting conditions and economic factors must not be part of the surrogate’s decision-making process. The surrogate must inform the patient as much as possible about the proposed medical treatment.
The surrogate must base any decisions on the best interests of the patient, considering factors like life expectancy, risks and side effects and long-term benefits.
Should Informed Consent Explanations Be Given Orally or in Writing?
According to Johns Hopkins Medicine, consent explanations can be given orally or in writing. A doctor must use understandable language.
Consent may not include language that includes a waiver seeking to remove a doctor’s liability in a medical malpractice lawsuit.
Recovering Damages for Surgery Without Informed Consent in Maryland
The damages a patient is able to recover in an informed consent case are different from the damages related to most other medical malpractice negligence actions. The liability relates to the lack of consent to a particular procedure. A patient may recover damages even when a medical procedure was successful in some cases. In a medical malpractice negligence case, a patient is required to show he or she was injured.
Informed consent cases may involve patients developing complications from an operation or another procedure that their physician failed to warn them about. Patients who develop a condition that a doctor failed to tell them about, have grounds to bring a medical malpractice lawsuit.
Contact an Experienced Maryland Medical Consent Lawsuit Lawyer
Informed consent or the lack of it is a complicated area of the law. These cases are not always clear-cut. A doctor or a hospital will often argue you received informed consent when you believe you lacked the full picture before a surgical procedure. It’s important to hire an experienced Maryland medical malpractice lawyer to take on hospitals and physicians. Please contact the Rice, Murtha & Psoras today for a free consultation at (410) 694-7291.