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Experts Speak

Can Lack To Obtain Informed Consent Result To A Medical Malpractice?

If your doctor consent violations result in injury, you may have a medical malpractice claim.

For a living patient, consent must be obtained for proper diagnosis, treatment, surgery, or other medical purposes. This is essential autonomy to any patient who goes to seek medical care. A doctor has to thorough give information about:

  • Proposed intervention, alternatives to such interventions and associated risks.
  • Patient’s role in making decisions.
  • Patient’s preference either by sue of a signature.

Effective informed consent ensures that patient health is not at risk. If a doctor performs any diagnosis, medication without the patient’s consent and this happens to cause injury, the doctor may be held liable.

Clipboard with documents about medical malpractice and gavel.

Almost every medical procedure requires that the doctor obtain informed consent from the patient. That way, a patient can decide on whether to undergo the diagnosis, treatment or surgery. When a patient learns of such a procedure, they then consent. Consent can be done by signing a form with details of what is to be carried on during the medical procedure. Your doctor must discuss why a particular medication is preferred, procedures and risks involved. There are many ways to give consent. They include:

  • Express consent:  A patient directly gives their positive consent to their physician either by writing or orally. One example is when a patient consents to surgery.
  • Implied consent: This is through the conduct or actions of a patient. For instance, a patient may nod their head or shows up for surgery at the agreed time.
  • Surrogate consent: Family members can also give consent. This allows a physician to consult the patient’s family members or relatives who are can convey consent to the proposed health intervention. 

If you have undergone treatment that you would have opted out of, you might have good grounds to sue your doctor for lack of informed consent if you had the information. 

Such cases are often complicated and require one to have a top Anchorage attorney to offer legal guidance on how to go about your legal process.

It’s worth noting that there are exemptions as to when informed consent may be used. They include:

  • During emergencies. If a patient cannot communicate or make sound decisions, such as an unconscious patient or in danger of death, there is no point in having informed consent.
  • Where a patient is emotionally fragile: Not every patient takes risks associated with their condition positively. If a doctor is made to believe that a patient will be affected emotionally would even refuse the treatment, informed consent may not be necessary.

Not every procedure may require informed consent. For instance, if your doctor is taking your blood pressure, this is considered as a part of treatment. Also, you may not require informed consent if you are not being treated.

Your doctor may not be in a position to explain all that may happen due to the procedure or treatment being carried out. However, he/she should ensure to give risk.

If your doctor never respected your ability to make a decision, and you developed complications, you may have a claim. To file your claim, you need to consider the below:

  • What would another doctor act given a similar situation? Would he/she have disclosed the risks? Here, your lawyer may work with a medical expert to prove that indeed, another doctor with the same level of experience, given the same scenario, would not have disclosed such risks? As a patient, winning such as case requires you to have an experienced medical malpractice lawyer who understands how to obtain informed consent . The reason is, the doctor in question will also have their expert to prove that the said risks should not be disclosed
  • How would a normal patient react with the informed risk: The court may be concerned with what a normal patient given the same risk would have responded. For instance, would they consent to surgery given the risk of being paralyzed after some time? This boils down to whether such a patient would have to consent to diagnosis or treatment given the risk associated with the procedure.

The “risk epidemic” is complicated. It requires someone with the right legal and medical knowledge to determine what a reasonable patient would know to have the capability to make informed consent. 

Talk To A Lawyer

If your doctor performed diagnoses or treatment but never informed you about the risks associated, you may have a medical malpractice claim. In some cases, a doctor may obtain informed consent for a particular condition but treat another different condition. This, too, may amount to a lack of informed consent.

To prevail in your claim, you have to prove that your doctor caused you harm due to their negligence action- lack of informed consent.

Consent violation cases are complicated. You should first speak with a lawyer who understands such circumstances before deciding to file your claim.

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by Chamsi Pirson

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