The Role of Informed Consent in Medical Malpractice Cases

Man signing a consent form on a tablet.

Medical malpractice comes in many forms. While many people associate the term “malpractice” with medical mistakes such as surgical errors or medication errors, there are other forms of medical negligence that can lead to preventable patient injuries. This includes malpractice claims that stem from situations where health care providers performed unauthorized procedures or treatment. These types of medical malpractice cases are known as violations of patient consent, or lack of consent claims.

Health care providers have a legal duty to provide care that meets acceptable standards of their profession, and to meet a number of established guidelines when doing so. Consent is one of the most fundamental standards associated with the practice of medicine, and medical professionals are required by law to obtain a patient’s consent before treating them.

Because there are many situations and unique issues that arise in medical settings, there are two forms of patient consent recognized by law:

  • Informed Consent – Informed consent, or express consent, refers to a patient’s explicit acceptance of treatment. Typically made in writing, informed consent requires a medical professional to adequately inform patients about any treatment or procedure they recommend, as well as any inherent risks. Most surgeries, elective procedures, and other forms of non-emergency treatment should generally never happen unless a patient has been properly informed and has signed a consent form.
  • Implied Consent – In the absence of informed consent, there are circumstances where a patient may implicitly agree to treatment provided by a medical professional. This may involve a patient who calls and schedules an appointment with a physician, affirmative physical gestures, arriving at a pre-designated time and location for treatment, and complying with pre-surgery procedure (i.e. fasting before surgery). In emergency situations where patients may be unable to provide informed consent, implied consent also provides the basis for medical providers to render emergency care.

Informed consent can play a critical role in medical malpractice cases, especially when a patient does not provide their informed consent to undergo a certain procedure or receive certain treatment, and subsequently suffers harm. Examples of these cases may involve:

  • Wrong site surgeryWrong site surgeries occur when a medical professional performs surgery on the wrong part of the body. For example, a patient may have consented to surgery on their right elbow, but the procedure was instead performed on their left elbow. This may also occur when a certain organ is supposed to be removed, or when an amputation is performed on the wrong body part.
  • Wrong patient surgery – Another common error involving lack of informed consent, as well as disorganization or administrative errors caused by hospital negligence, is surgery performed on the wrong patient. This may occur when a procedure intended for another individual is performed on a patient who did not consent, and did not need, that particular surgery.
  • Risks & complications – In some cases, patients may suffer from complications of treatment to which they consented which they were not informed about, were led to believe were less serious than they actually were, or which conflicted with the information provided to them by a doctor. Informed consent requires a health care provider to adequately discuss risks and complications, which must also be included in consent forms. These types of claims are based on the idea that had a patient been properly informed about risks and complications, they may not have consented to the procedure.

Evaluating the role of informed consent can be a challenging endeavor, and one that will vary from case to case. As such, lack of informed consent claims demand the attention of lawyers who have extensive insight handling medical malpractice cases and determining how health care providers failed in their duty to adequately inform patients, obtain consent, and / or provide care in accordance to acceptable standards of care.

As a Houston-based law firm recognized nationally for our ability to handle challenging medical malpractice cases across Texas and the U.S., Hampton & King has cultivated a track record of successful resolutions for victims of medical negligence, as well as millions of dollars in compensation. Our firm is also uniquely positioned to handle these case because we are one of the only legal practices in the Southwest to employ a full-time doctor and Ph.D. nurse – both of whom provide invaluable insight in malpractice cases.

If you have questions about a potential medical malpractice case and how our award-winning Houston trial lawyer can help, call (713) 489-0993 for a FREE consultation.