Informed Consent in Medical Malpractice

One concept that is integral to understanding medical malpractice claims is informed consent.

Informed consent is the patient’s approval for a surgeon to perform a particular procedure; the patient must sign a form acknowledging that he has received a consultation that adequately described the surgery, risks involved, and also potential consequences the patient could face if the surgery is not performed.

Under no circumstances should you sign a consent form if you do not fully understand any of the above, as your signature essentially means that you have understood and are giving your approval for the surgery to take place; it may also make bringing a successful medical malpractice claim extremely difficult.

Sometimes in medical malpractice cases, a plaintiff can use the lack of informed consent as the basis of the lawsuit. That is, the patient can argue that the physician did not provide adequate information in the pre-surgery consultation. This can include the claim that the doctor provided false or misleading information about the surgery itself or about its potential risks or benefits after surgery. Misrepresentations in the information can also lead to a successful claim of medical malpractice based on the lack of informed consent.

No Errors in Surgery

Note that informed consent can even be alleged when a surgery is performed correctly; if you become paralyzed, for example, after a flawlessly performed surgery but weren’t advised of the possibility of paralysis before the surgery, you could have a valid claim of lack of informed consent.

Reasonably Prudent Person

Even if you show there was no informed consent, however, your case still may not be open and shut. In some jurisdictions, you would then have to show that a reasonably prudent person in your situation would not have consented to the surgery either.

Emergencies

One rather large exception to the requirement of informed consent is in cases of emergency care. If the operation for which you are now claiming medical malpractice occurred during the course of an emergency situation (for example, after a car accident), claiming lack of informed consent won’t get you very far; in those situations, a doctor is not obligated to provide you information about the surgery and/or its risks and benefits as there simply isn’t time to do so.

If you think you have a case that involves a lack of valid informed consent, be sure to contact a medical malpractice lawyer in your area for further consultation.