Before treatment, have you ever been sat down by your doctor while he explains to you the procedure and associated risks? It feels like a lot of box-ticking, right? It may also feel a bit daunting – you’re going in for a simple procedure and suddenly you’re warned of infection, paralysis – even death! This is all part of a doctor’s duty to gain your informed consent. If they don’t – they may have lack of informed consent which is a form of medical malpractice. 

Back in the day, before the 19th Century – doctors didn’t need to get informed consent. Doctors had the standard of care to promise a cure to the patient – no matter the chances of survival. There was no such thing as ‘false hope’ in those days. Safe to say, it doesn’t work like that anymore.

Doctor discusses medical consent with patient.

What Is Medical Malpractice?

Healthcare professionals hold an expected standard of care for their patients. But what happens when this standard of care falls below the mark? Although there are many shocking medical malpractice facts out there, medical malpractice occurs when a healthcare professional’s service and treatment is below-par. As a result, consequences like harm, injury or even death arise.

According to a John Hopkins study, more than 250,000 people die from medical mistakes each year. In the United States alone. 

Standard of care covers the patient’s entire journey. This includes diagnosis, dosing, treatment, aftercare and obtaining informed consent before a procedure. Negligence in any one of these areas can lead to medical malpractice and a potential case against the professional.

If this rings a bell, maybe you have a medical malpractice case on your hands. Specifically a lack of informed consent case.

How Lack of Informed Consent Can Lead To Medical Malpractice

What’s Informed Consent?

Informed consent is more than agreeing to have a procedure done. 

Informed consent is where a doctor sits down with their patient to explain their medical condition, the proposed treatment and associated risks. There’s a general acceptance that most treatments come with some sort of risk. For example, a simple blood test runs the risk of bruising and infection. 

A consent form will have two sections:

      1. Description of the procedure
      2. A list of risks involved with the procedure

It’s your doctor’s responsibility to provide all essential information so you can make a schooled decision. Informed consent aims to create a 2-man decision – it’s your body after all. Typically, your doctor explains the information and then both sides will sign a form. If this process isn’t followed to the expected standard of care – your doctor may lack informed consent. Yes, even if you sign the piece of paper. If harm, injury or death follows, then this could lead to a medical malpractice case.

Issues with informed consent are common in elective surgeries (surgeries planned in advance). Take, for instance, the Billy Boone case (Goldberg v. Boone). Boone, a patient of Dr. Goldberg, underwent a revision ear surgery. Little to his knowledge, his first surgery left him with a small hole drilled into his skull. As a result, the second surgery years later would be more complicated than the first. While Dr. Goldberg was an experienced plastic surgeon in facial cosmetic work (such as nose jobs), he lacked know-how in this surgery. Unfortunately for Boone, shortly after the surgery, he suffered short-term memory issues and bouts of anger – traced back to his site of injury. 

The court found that Dr. Goldberg should have let Boone know:

– Of the increased complexity of the surgery

– That he wasn’t experienced in this procedure

– That there were more specialized surgeons, well-practiced in this procedure

How Doctor’s Miss the Mark – Lacking Informed Consent

There are a few key points to look at when determining whether a doctor gained your informed consent. Remember! Even if you sign a form, you may still have a case against the doctor

The Doctor Doesn’t Disclose Important Risks

While a doctor doesn’t have to disclose every possible risk under the sun, they must tell you important risks.

This wording sounds vague because it is. What makes a risk important? There are two tests to look at to determine whether a risk is ‘important’:

“Regular Person” Test – If informing a regular person (with the same medical condition and history) of the risk – would they change their mind.

“Regular Doctor” Test – Would other competent doctors have disclosed the risk to a patient?

We need to consider both tests when deciding if a risk is important enough to disclose to a patient.

The Doctor Performs A Different Treatment

Think about it, you gave consent for X treatment. So, if you received Y treatment – the doctor didn’t get your informed consent. This is the case even if the procedure went to plan, hiccup-free. While it may sound shocking that a doctor could perform a treatment other than the one intended – it happens

The perfect example of this is when a doctor had a diabetic patient who needed his leg amputated. The doctor did so but on the wrong leg! In the end, he lost both his legs and won from the case a total of $1,150,000.

To throw in a curve-ball, imagine this. During surgery, your doctor discovers something else. Perhaps a partially blocked artery that needs clearing? In cases like this, there’s no need for your doctor to wake you, gain separate consent and go back to complete the job. He can do it right there and then.

The Doctor Delegates The Duty To Obtain Informed Consent

By law, doctor’s themselves must be the ones that gain informed consent – they can’t hand nurses this job. In some circumstances, nurses can also be liable – but this doesn’t allow a doctor to escape liabilities in getting consent. 

The Patient Felt Pressured Or Rushed To Sign The Consent Form

If the doctor or healthcare professional pressured or rushed you to sign the consent form then you may have a case to raise. This also goes for if the patient does not read English well and the only available form was in English. In all these cases, even if you sign the form, there may be a case.

Exceptions To Medical Malpractice: When Doctor’s Don’t Need To Obtain Informed Consent 

So we’ve discussed cases that catch doctors in their duty of care. What are some cases where doctors don’t need to get your informed consent?

Emergencies Don’t Need Informed Consent

When time is of the essence, obtaining informed consent is not required. Understandably, quick actions must be taken to save a life. While someone is bleeding out it would be senseless to say “hold on a second, can I talk you through the risks of giving you a blood transfusion?”. Thus, patients can’t sue in certain circumstances – even if they wouldn’t have chosen the treatment.

The Patient Is Mentally Unsound

If a patient’s stress would cause them to refuse treatment, doctors may be able to bypass informed consent requirements. They might also be able to withhold certain information. For example, if discussing a risk would cause anxiety and cloud judgement – the doctor may be able to withhold this information. 

Lack of informed consent lawsuit.

Getting Professional Help

Do any of these situations sound familiar? If you feel like you or a loved one is in this situation contact us to get clarity on if you have a case. Maybe you are wondering, have I signed my life away? Or, can I sue if I signed a medical consent form? It’s best to take out the guesswork and get in touch with one of our experienced  lawyers for a free consultation to discuss possible lack of informed consent medical malpractice.