Have I Waived My Rights Because I Signed a Consent Form?
Before many major medical treatments like surgery, patients are required to sign a consent form to confirm that the patient understands what procedure will be performed, the risks and benefits of undergoing the procedure, as well as other treatment options.
The medical consent form is designed to protect the physician, surgeon, and medical facility from liability while informing the patient or family members of the risks of treatments. However, signing a consent form does not take away your rights to receive treatment that complies with the applicable standards of care, or protect a medical professional from a medical malpractice lawsuit.
What is Informed Consent?
Consent forms before major medical procedures are used to protect medical professionals from liability regarding informed consent. Informed consent means the patient should understand his diagnosis, the proposed treatment, benefits of the treatment, risks of the treatment, other treatments available and risks of not undergoing the treatment. A patient or his medical proxy must not only agree to the treatment suggested, he must be informed of the risks of the procedure. A medical consent form contains information on the procedure and the possible complications or risks that can occur. The patient or his healthcare agent authorized by the appropriate power of attorney document must understand and agree to the procedure by signing the consent form.
What a Consent Form Does Cover
A medical consent form in no way waives your rights to receive treatment that complies with the applicable standards of medical care. The consent form should outline the possible risks and complications that can occur, so patients can make an informed decision. If a patient is considering an elective surgery that has a risk of paralysis, he may make the decision that the risk outweighs the possible benefit when he reads the consent form. However, if he decides to accept the risks and one of the outlined complications occurs, the likelihood of a medical malpractice lawsuit may be diminished but must be evaluated on the specific facts of his unique situation.
When a Consent Form is Misleading, Incomplete, or Signed Under Duress
While medical consent forms are usually long and meticulously state the reasons for the procedure and the possible complications or risks, they are not a legal blanket for medical professionals to hide behind. Even if you signed the form, if a complication occurs that causes you injury, you may still be able to pursue a lawsuit. The following possible problems may occur with consent forms:
- Misleading. If a complication is listed, but the risk level is not accurate, it could be construed as misleading. A patient may accept a risk of internal bleeding at less than 1% but not if 10% of patients experience this complication. Major risks like brain damage, death, paralysis, and other life-changing complications should be outlined specifically, along with common complications.
- Incomplete information. Sometimes risks or complications that have occurred, but only rarely, are not listed on the consent form. If it can be proven that another physician would have disclosed the risk, but your doctor did not tell you about it, and then the complication occurred, there may be a possibility to pursue a medical malpractice claim.
- Patient’s state of mind. For any legal form to hold up in court, the person signing it must be considered competent and not under duress. If the patient was sedated, mentally ill, or not in his right state of mind when he signed the consent form, it could be argued that informed consent was not given. The same is true if the patient feels pressured or under duress when he is asked to sign the form.
Consent Forms and Medical Malpractice
Regardless of whether you sign a medical consent form or not, these forms do not protect surgeons, physicians, and other medical professionals from liability when it comes to medical malpractice. If a negligent medical mistake or error is made that causes you injury, the health care provider can be held liable for the damages in court if you are able to prove negligence, causation, and damages. At Nelson & Hammons, we carefully consider all the information our clients give us and investigate the circumstances of their medical malpractice claims. If there is proof that a medical professional caused harm due to negligence, we will fight diligently to get compensation and justice for our client.