Lack of Informed Consent
Knowing the possible risks and rates of success for medical procedures is vital to making an informed decision on whether to receive treatment. Most people rely on their physicians to provide them with the information necessary to decide whether a surgery, medication, or other type of therapy is the right option for them.
Treatment plans should be a decision that doctor and patient make together, discussing the success rates and possible risks, to choose the best treatment for the patient. This is also referred to as informed consent in the medical and legal fields. When this important discussion does not occur, and the patient is not aware of all the facts regarding a proposed treatment, he might consent to a treatment that has higher risks than he realized. This is a lack of informed consent, and it can be medical malpractice.
Many types of medical treatments have risks. Medications have possible side effects, surgeries can have risk of injury, and some therapies can even have a risk of death. Therefore, informed consent is important to confirm a patient knows the possible outcomes of a treatment. The patient needs to understand what risks are involved to receive the possible benefit. For example, if you have cancer, there may be a few different treatment options. You need to know which have a higher success rate, but you also need to know the risks of each treatment. If not getting any treatment will result in the likelihood of death, you may be willing to accept higher risks associated with a treatment. However, you need to know and understand these risks to have informed consent.
When is Lack of Informed Consent Medical Malpractice?
Lack of informed consent is a complicated type of medical malpractice. First, like all medical malpractice claims, the lack of informed consent must result in harm or injury to the patient. This must be a direct result of not receiving all the information necessary to make an informed decision on whether to have the treatment recommended by the physician.
Second, if a person is injured from a treatment due to a risk that was not disclosed, was the risk material enough to have changed his decision to have the procedure? If the risk was extremely low and the benefit of the procedure was large, would a reasonable person still have had the treatment, even knowing the risk? These are areas that must be explored in lack of consent malpractice cases. It must be clear that if the patient had known all the risks or possible side effects of a treatment, he would not have consented and due to these risks he was harmed or injured.
Generally, for non-emergency procedures, informed consent forms are signed before the treatment is given. However, you signed a form, but it does not necessarily mean the doctor or surgeon is protected from liability for a medical malpractice claim if the patient is injured during the treatment. If it can be proven that the patient did not know the significance of a risk, even if he signed a form, there could still be medical malpractice if he would have made another decision, and he was injured as a result of the procedure.
Due to the complicated nature of lack of informed consent, it is important to have a legal team that specializes in this area of personal injury law. At Nelson & Hammons, we have spent decades fighting medical malpractice cases for our clients, including lack of informed consent injuries. If you have been harmed by medical treatment and were not informed of the risks, you may have a medical malpractice case. Contact one of our legal team to schedule a consultation to discuss your case.