Can Lack of Patient Consent Mean Medical Malpractice?


Before a doctor or another medical provider can provide treatment, he or she must first secure the patient’s implied or express consent. Many medical procedures require that patients give informed consent before they can be performed. When a doctor’s failure to secure a patient’s consent results in injury to the patient, the doctor might be liable to pay damages in a medical malpractice claim. Here is some information about the consent requirement for medical treatment from the attorneys at Raynes & Lawn.

Informed and Express Consent

When a patient gives his or her express consent to treatment, he or she agrees to receive the treatment. Normally, express consent is given in writing. Nearly all non-emergency medical procedures require that patients give the express, written consent in advance. If you have ever undergone a surgical procedure or an imaging test like an MRI, you might remember receiving a document in which the procedure was described with a list of potential complications and follow-up care that might be needed if one of the described complications occurred.

Consent for medical care requires that you also give informed consent, which involves more than simply agreeing to undergo the procedure. Getting a patient’s informed consent means giving the patient all of the necessary information about the procedure and the complications or risks associated with it. The patient must also have the opportunity to talk about any concerns that he or she has.

The requirement for informed consent is why when people are recommended to undergo surgery, a doctor will likely talk to them about the form and answer questions that they might have about the procedure and what to expect. If a patient refuses to sign an informed consent form, the doctor will not perform the procedure.

When Can a Lack of Express Consent Lead to a Malpractice Lawsuit?

A claim for medical malpractice involving a doctor’s failure to secure a patient’s express consent might arise in several situations. For example, if a doctor decides to perform a second surgery in a non-emergency situation, he or she must get the patient’s express consent for the second surgery as well as the first one. Other situations in which a lack of express consent might result in a malpractice lawsuit include the following:

  • The complication the patient experienced was not identified in the consent form.
  • The complication that the patient experienced was more common than what was suggested in the consent form.
  • The explanation given by the doctor about the potential complications was different than what was stated in the consent form.

Failing to Identify a Potential Complication

A consent form does not have to include every complication that has ever been associated with the planned procedure. However, if a specific type of complication is reasonably well known and has been discussed in the medical literature, you might argue that it should have been included in the consent form even if it is rare. In that type of situation, you might have a claim that the doctor’s failure to include it was medical negligence.

Failing to Accurately Describe a Complication

Failing to accurately describe a complication might happen when a consent form includes a misstatement about the odds of suffering a specific complication. For example, a form might state that the complication only occurs in 1% of patients when it has been found to occur in 10% of cases. If that occurs, and you suffer the complication that was inaccurately described in the consent form, you might have a claim for negligence if you would not have agreed to the procedure if you knew about the actual risk involved.

A consent form can also cause issues in situations in which a patient was pressured to sign it or if he or she signed the form when his or her competence was at issue. For example, if the patient was intoxicated, under the effects of medication, or suffering from dementia or another similar condition, he or she might not have been competent to consent to the procedure.

Implied Consent for Treatment

In some situations, a patient’s consent will be implied by his or her actions. A common time when patients impliedly consent to treatment involves non-surgical treatment for which the patient shows up to receive care. For example, if your doctor recommended that you get a COVID shot, and you then went and got the vaccine without stating to your doctor that you consented, you gave implied consent to receiving the vaccination when you showed up and sat for the injection.

Implied consent commonly arises in emergencies when a patient is unconscious. When it is critical to provide immediate treatment, implied consent normally allows doctors to provide care without waiting to get the patient’s express consent. For example, if you were seriously injured in a car accident that left you with a traumatic brain injury, the doctor could provide care without waiting for you to wake up and provide express, written consent.

Consent Violation as a Basis for Medical Malpractice

A consent violation will not be enough by itself for a medical malpractice claim. Instead, you will also have to prove that the doctor was negligent and that the consent violation caused your injuries and harm. Some examples of when a consent violation might be included in a medical malpractice claim include the following:

  • You suffered a separate injury that would not have occurred if the doctor had obtained your proper consent.
  • You suffered additional pain and suffering or an exacerbation of your existing condition because the doctor failed to obtain your proper consent.

If you did not suffer any harm from the consent violation, you will not have a viable malpractice claim.

Speak with an Experienced Medical Malpractice Lawyer

If you would not have undergone a procedure if you had been informed about a complication you subsequently suffered, you should consult an experienced medical malpractice attorney at Raynes & Lawn. Call us today at 1-800-535-1797 for a free consultation.

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