The Role of Informed Consent in Medical Malpractice

When was the last time you read the fine print in a contract or terms of service agreement? Reading the iPhone terms of service agreement might take a half-hour because it is 7,314 words. It probably won’t matter if you don’t read every word of those agreements, but it does matter if you sign an informed consent agreement before a surgical procedure.

There is a risk with every type of medical procedure. In addition to potential errors made with the actual procedure, there could also be complications in the aftercare. If problems arise because the patient wasn’t fully informed, it could be a factor in a medical malpractice lawsuit.  

That is the type of situation where you need to get the support and guidance from an attorney like the team working at Hendrickson & Long, PLLC, who understands the applicable laws and complexities of these types of cases.

What Is Informed Consent?

A medical malpractice claim built on the lack of informed consent means you might not have undergone the procedure if you were fully aware of the risk. Doctors are not obligated to provide all the potential permutations of what kind of harm can occur with a procedure or aftercare. However, there are some general standards that courts apply when it comes to what informed consent should mean.

These are the key elements of what informed consent should include:

You Are Informed About the Procedure and Risks

Your doctor and hospital staff must provide you with sufficient information that allows you to understand the proposed treatment or procedure, its risks, and benefits. You also have to be informed about any possible alternatives.

You Understand the Procedure and Risks

Being informed is not just a recitation of the facts. You also have to be presented with the information so that you understand it. That could mean explaining the procedure and care more in layperson’s terms than medical speak.

You Agree to Undergo the Procedure

After you’ve been informed and understand what is going to happen during and after your treatment, you have to agree to undergo the procedure voluntarily. In some cases, you can agree verbally, but most often, you must sign the consent form.

Informed consent matters because it provides you with all the information you need to decide whether to move forward or seek an alternative.

When Is Informed Consent Required?

Informed consent is required in most medical settings. Medline Plus details when informed consent is required in the following way:

•         “Most surgeries, even when they are not done in the hospital.
•         Other advanced or complex medical tests and procedures, such as an endoscopy (placing a tube down your throat to look at the inside of your stomach) or a needle biopsy of the liver.
•         Radiation or chemotherapy to treat cancer.
•         High-risk medical treatment, such as opioid therapy or treatment with corticosteroids.
•         Most vaccines.
•         Some blood tests, such as HIV or genetic testing. Most states have eliminated this requirement to improve rates of HIV testing.”

Informed consent is also required before you can participate in any clinical trial or research study. Alternative treatment options should also be a part of informed consent because that provides a more comprehensive overview of what you are about to undergo. When a procedure is to be performed on a minor or an incapacitated patient, a legal guardian is like a parent or surrogate decision-maker.

When Is Informed Consent Violated?

It seems inconceivable that a patient would undergo a procedure without discussing what will happen with their doctor and signing consent forms. That can happen, but it doesn’t automatically mean the informed consent is valid. This is how your informed consent could be violated:

Failure to Explain 

A patient could be scheduled for a specific procedure, but their surgeon does not inform them about the relevant risks associated with the procedure. The patient wakes up with nerve damage that shows up as diminished motor skills or chronic pain. They might not have opted for the procedure if they had been told of those risks. That would make the surgery a case of violated informed consent.

Pressured Into Consenting

A patient puts their trust in their doctor. That makes them vulnerable. After all, if a doctor says they must take a certain medication or undergo a procedure, that doctor should know best. The patient could feel pressured into consenting when the doctor does not include the risks or an alternative to their prescribed treatment. That is a case of insufficient disclosure of information, which is another type of informed consent violation.

Consent Scope Exceeded

In a way, a consent form is like a contract. You agree to a specific procedure, and the doctor will carry out that procedure. However, if the doctor goes beyond the initial surgery for an additional procedure without the patient’s consent, that would violate the original consent form.

Unauthorized Testing

Testing is part of every medical procedure. The foundation for many tests is blood work. The range of blood work is specific to the procedure. However, a lab technician could perform additional tests without the patient’s consent. That can lead to an invasion of privacy. It can also mean extra costs that the patient didn’t agree to. This type of violation might not cause physical harm, but it is still a violation.

Do You Need Legal Counsel?

According to information published by the National Library of Medicine, 1 in 9 persons reported undergoing at least one surgical procedure within the last year. The vast majority of those procedures yield the expected outcomes without complications. Things can go wrong during surgery, which is not always a doctor’s fault. However, when there is an issue of an informed consent violation, there could be a reason to pursue a medical malpractice claim.

In fact, failing to obtain informed consent for non-emergency treatment can trigger a civil complaint referred to as gross negligence. It can also lead to criminal charges where the procedure would be considered a form of battery.

If you are facing a situation like this, the attorneys at Hendrickson & Long, PLLC want to hear from you. We can guide you about the challenges you might face with a medical malpractice claim and whether your situation merits a response. You’ll appreciate getting the right information about your concerns.