Informed Consent and Medical Malpractice

 In Personal Injury

Doctors must fully inform their patients of the risks involved in any proposed medical procedure, treatment, or test. This is called “informed consent.” If a doctor does not get informed consent from a patient, and the patient is injured, the patient may have grounds to sue the doctor for medical malpractice.

What is Informed Consent?

Most medical procedures involve some risk. It is the doctor’s responsibility to give the patient information about the risks posed by a particular procedure so that the patient can decide whether to undergo the procedure. The process of providing essential information to the patient and getting the patient’s agreement to a certain medical procedure is called informed consent.

Doctors usually require that patients sign a consent form outlining the risks of any given procedure. But signing a form alone does not necessarily prove that the patient gave informed consent. The doctor must actually discuss the procedure and risks with the patient. And the patient must understand, to the extent possible, the risks he or she faces.

Whether or not a patient gave his or her informed consent to a procedure is critical in the law of medical malpractice. If a doctor does not get a patient’s informed consent, and the patient would not have agreed to the procedure if he or she knew about the risks, then the patient may be able to sue the doctor for medical malpractice.

What Risks Must be Disclosed?

A doctor is not required to tell a patient about everything that might possibly go wrong as a result of a procedure. It is only necessary to disclose those risks that are significant. But what is considered significant? The courts use a “reasonable patient” standard to determine this.

Would a Reasonable Patient Have Made a Different Decision If Informed of the Risk?

The test is for what is a significant risk is not whether this particular patient would have chosen to avoid the risk by declining the procedure if the risk had been disclosed. The test is whether a reasonable 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. If a risk is one that would affect the decision of a reasonable patient then it is considered significant and it must be disclosed.

What If There Are Alternative Treatments Available?

A doctor must inform a patient of realistic alternative treatments, even if the doctor only recommends one treatment. It is the patient’s right to decide what treatment they undergo and what risks they are prepared to take.

When Informed Consent Is Not Required?

In a medical emergency, there is no time to describe the risks involved if a physician must act quickly to save a life. A patient cannot sue for lack of informed consent in this situation, even if he or she would not have allowed the treatment.

What If the Doctor Performs a Different Procedure?

If the doctor performs procedure B after the patient has given informed consent for procedure A, the patient can sue the doctor based on lack of informed consent. This is true even if the procedure was successful. A patient only has a claim, however, if the additional or different procedure was a mistake or clearly not necessary.

If a doctor fixes a serious medical problem that she finds while performing another procedure, the patient probably does not have a claim for lack of informed consent. For example, if a patient consents to an operation in which the doctor will fix a heart valve, and in the midst of the operation the doctor finds another serious medical problem with the patient’s heart, the doctor can go ahead and fix the second problem without getting separate informed consent from the patient.

This blog post was written by Edward (Ted) Masters, a member of the Disability Insurance Claims and Personal Injury teams.  He can be reached at 613-566-2064 or at ted.masters@mannlawyers.com.

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