Informed Consent and Medical Malpractice

Informed Consent and Medical Malpractice

Before patients undergo procedures or treatments that their doctors have recommended, their physicians must inform them about the risks involved with the proposed procedures or treatments. The process involved with informing patients about the risks is known as obtaining their informed consent. When a doctor fails to get informed consent or fails to adequately warn about the risks, a patient who is injured as a result may have grounds to file a medical malpractice lawsuit. Here is some information from the attorneys at Raynes & Lawn about informed consent and when it might form the basis for a viable medical malpractice claim.

What Is Informed Consent?

There are risks involved with any medical treatment or procedure. Because of the risks, doctors are expected to provide information to patients about the risks involved with the procedures they recommend so that the patients can make fully informed decisions about whether to agree to them. When a doctor provides this type of information about a proposed treatment, it is called obtaining the patient’s informed consent.

Other than in emergencies in which the patient is unconscious or is otherwise unable to consent to treatment, doctors normally provide consent forms for patients to sign that detail the risks of the treatment they have proposed. However, simply signing a form does not mean that a patient has given his or her informed consent. Instead, doctors normally talk about the procedures they recommend with their patients and explain the risks so that they understand them before agreeing to receive the treatment or undergo the procedures.

If a doctor fails to get informed consent from a patient, and the patient is injured, the doctor may be liable for medical malpractice when the patient would not have agreed to the procedure if he or she had been informed about the risks.

Types of Risks That Must Be Disclosed

Not all risks have to be explained by doctors. However, doctors are expected to explain the important, known risks of a given procedure. There are two different standards used to determine whether a doctor should have disclosed a particular risk. In many states, the standard looks at whether other doctors with the same degree of experience and education would have disclosed the risk to the patient in the same situation. In Pennsylvania and a few other states, the standard used is instead patient-centered and considers whether a reasonable patient in the same situation would have decided not to undergo the treatment if he or she had been informed of the risk.

Under Pennsylvania law, courts consider whether a normal patient with the same condition and medical history as the plaintiff would have decided against getting the treatment if he or she had learned about the risk that was not disclosed. Doctors are also expected to inform patients about alternative, realistic treatments even when they only recommend one treatment.

Pennsylvania also requires medical malpractice plaintiffs to file certificates of merit with their lawsuits or within 60 days of the filing date of their complaints. These are certifications that the case has been evaluated by a medical expert who can testify that what the doctor did fell below the expected standard of care. In situations involving a lack of informed consent, the medical expert would have to be willing to testify that normal patients would have likely decided against the proposed treatment if they had been informed about the risks or that the doctor failed to inform the patient about a realistic alternative treatment.

Exceptions to the Informed Consent Requirement

There are a couple of exceptions to the general rule requiring informed consent. A major exception exists in a medical emergency when the doctor does not have time to explain the risks involved because of the need to act quickly to save the patient’s life. For example, a patient brought to the emergency department after suffering major injuries in a car crash and who is unconscious would meet this exception. The doctor could perform the necessary surgery to save the patient’s life without waiting for him or her to regain consciousness so that the doctor could explain the risks.

A second exception exists when a patient is so fragile that the doctor understands that he or she would refuse necessary treatment because of his or her distress. For example, a patient who has a life-threatening brain tumor that carries a risk of paralysis if it is removed might receive vague descriptions of the risks because of the necessity of its removal to preserve the patient’s life. When a doctor determines that he or she should give vague descriptions about the risks because of the fragility of a patient, he or she must still be able to demonstrate a clear, objective reason why he or she did not fully disclose the risks.

When Doctors Perform Different Procedures

Doctors must get informed consent for any procedure they perform that does not meet one of the exceptions to the rule. If a doctor performs a different procedure other than the one for which he or she secured the patient’s informed consent, the patient might still be entitled to pursue a medical malpractice claim based on the lack of informed consent for the second procedure when the patient was injured. However, the patient will also only have a valid claim in this type of situation if the different procedure was unnecessary or a mistake.

A patient will not have a viable claim in a situation in which a doctor discovers a serious medical issue while performing the procedure for which he or she obtained the patient’s informed consent and then performs an additional procedure to fix the newly discovered problem. For example, If a doctor is operating on a patient’s leg and discovers a blood clot during the operation, the patient will not have grounds to file a claim against the doctor for removing the clot even when the doctor did not get the patient’s separate informed consent for that additional procedure.

Speak to an Experienced Philadelphia Medical Malpractice Lawyer

If you believe you were injured because a doctor failed to inform you about the risks of a procedure, you should speak with the attorneys at Raynes & Lawn. Call us today for a free case evaluation at 1-800-535-1797.

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