Understanding Informed Consent in Medical Malpractice Cases

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Medical malpractice covers a wide range of actions, but the term generally applies to doctors inappropriately or imprecisely practicing their trade. While most people associate the term “medical malpractice” with things like surgical errors or botched procedures, one of the most glaring forms of medical malpractice is informed consent violation.

What is Informed Consent?

Every patient has the right to know all aspects of their healthcare and treatment plans. Doctors are legally obligated to fully inform patients about every detail of a treatment plan before allowing the patient to agree to treatment. This means the doctor must fully explain all the risks associated with a particular procedure or treatment plan. Most medical treatments and procedures involve some level of risk, so doctors have a duty to allow patients to make informed choices about their healthcare options.

Most serious medical procedures require the patient to sign a consent form. If a doctor allows a patient to sign but did not properly inform him of all the details of a procedure, the doctor can be held liable for medical malpractice if the patient suffers any injury from the treatment or procedure.

Full Disclosure

Ideally, doctors should try to inform patients of every potential risk of any given procedure or treatment. However, some treatments have countless possible side effects with very low chances of happening or very rare appearance rates. Some doctors accused of violating informed consent law argue that the patient’s injury was such a remote possibility that she did not believe it warranted disclosure.

When a medical malpractice case goes to court, there are two standards (depending on the state in which the case takes place) used to determine whether or not a risk should have been disclosed. They are explained below:

  • First, the plaintiff’s attorney will usually call in medical practitioners to testify as expert witnesses. In most medical malpractice cases, these expert witnesses would be doctors with experience in the field of medicine involved in the case. The court will assess whether or not other doctors of similar skill and experience would have disclosed the risk in the same circumstances.
  • The second standard is the determination of whether a typical patient would have agreed to the procedure or treatment had the risk been disclosed. Even if there is a minute possibility of a serious risk, that would be enough to dissuade some patients from pursuing the treatment in question.

Other Defenses Against Informed Consent Violation Charges

There are some situations where informed consent is not necessary. These typically hinge on medical necessity, or when the doctor is working in a life-or-death situation in which time is a critical factor. In the case of an emergency, a doctor may use her best judgment to treat a patient in order to save the patient’s life, even if there is no time to explain the risks of the treatment. A patient cannot sue for the doctor’s actions in this situation since there was no reasonable time to obtain informed consent and the doctor acted in good faith.

Some patients are extremely emotionally fragile, and the thought of frightening risks, however small, may deter them from agreeing to life-saving treatment. In these situations, doctors can be vague in their descriptions of the associated risks of a procedure if the patient’s emotional state would prevent him or her from making a sound decision. If a doctor finds a previously unknown issue in the middle of treating a known issue, the doctor does not need to obtain consent to address the second problem because he is acting in the patient’s best interest.

Medical malpractice cases are typically very time-consuming and involve a heavily regulated set of rules. If you need to sue for a violation of informed consent laws, or you are a physician fighting an unjust malpractice claim, it’s important to find a Baltimore personal injury lawyer with extensive knowledge of medical malpractice law.


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