Informed Consent and Medical Malpractice

Before any medical treatment, doctors have to inform their patients about the inherent risks that might arise. Then the patient can weigh these potential risks against the potential benefits before making an informed decision. If a doctor fails to warn a patient about a risk that ends up injuring them, then the patient might be able to file a medical malpractice lawsuit.

This is why you will usually be asked to sign a consent form. But this document is not the only condition for informed consent. You have to be told about what the treatment will do and what hazards you could be running. Let's say that you had surgery and that you were harmed by a known risk, a risk known to the doctor but not to you. If you had been aware of this risk beforehand, you might not have chosen that operation. In this situation, you might have grounds for a medical malpractice suit. Now a doctor is not responsible to tell a patient anything and everything that could go wrong. He or she will have to relate the significant risks of a procedure. Of course, "significant" can be a subjective term. How this will be determined depends on what state the hospital or physician is located.

In some states, you will need the testimony of a medical expert to determine if a reasonably competent doctor would have informed the patient about the risk they ended up suffering from. Of course, the defendant will have their own medical expert to state that the risk suffered did not need to be disclosed. Ultimately, a court will have to determine whether the risk that occurred was statistical probable enough to warrant disclosure.

In other states, what a court wants to know is whether a typical patient under the same circumstances would have refused the treatment if they had been fully aware of the risks they ran. What this means is whether someone with identical medical history and medical problems would have chosen different treatment if they had been informed of the risks. Also, in these jurisdictions a doctor usually has the duty to tell patients about possible alternative treatments.

There are also circumstances under which informed consent is not necessary. For example, in an emergency, a doctor has to make an almost instant decision in order to save a patient's life. It does not matter whether or not the patient would have rejected the treatment if they knew the risks. There is no time for such warnings in the emergency room. Secondly, there does not have to be informed consent in certain other life-saving treatments. For example, an already weakened and anxious person may be suffering from a malignant brain tumor, and surgery is required to save the patient's life. The doctor is then allowed to be ambiguous about the fact that the patient runs the risk of blindness. This risk might make the patient too afraid to undergo a life-saving operation. Not fully disclosing this risk could be necessary in trying to save the patient's life.

Of course, there are many additional factors that could affect your case, all of which further depend on state law. If you think you did not give informed consent, contact a Shreveport medical malpractice lawyer today. At Morris, Dewett & Savoie, LLC, we can help you determine if you have grounds for a malpractice claim, and then we can put our more than 70 years of experience to work for you. If you work with our firm, you could have the backing of an attorney who is dedicated to preserving your rights.

Categories: Medical Malpractice
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