Informed consent refers to a doctor giving the patient information about a medical treatment and said patient agreeing to it. The patient has the right to determine what is and isn’t done to their body. But, when a doctor fails to adequately inform the patient about a proposed treatment; it can often end in medical malpractice, if the patient becomes injured during the procedure or treatment.
It’s rather basic really – to make the right decision, the patient, needs to be given the correct information, so that an educated decision can be made. But that doesn’t mean it doesn’t get confusing along the way.
Nearly every state has ‘medical consent laws’ in which written consent is required. Verbally agreeing or a head nod isn’t typically enough. It needs to be clear that the patient understands what happens before, after and during the treatment or procedure. Below is a closer look at the elements of informed consent.
- The purpose of the intended procedure
- Procedure success rates
- Recovery time expectation
- All costs associated with the treatment. And what is or isn’t covered by your health insurance
- Name of the doctor handling your treatment and his qualifications to do so.
Scope of Consent
The doctor is only allowed to do what the patient has consented too. However, the doctor is permitted to take reasonable actions during surgery if unexpected health risks arise, but, absent medical necessity and/or emergency, the doctor cannot presume the patient would have agreed to additional or different treatment.
To be clear, the signing of an informed consent form doesn’t release the doctor or hospital from being liable for malpractice. But, if for any reason the doctor supersedes consent given, it may be a case of malpractice.
Who can Give Consent?
In cases where the patient may have a mental disability or is unconscious and can’t give informed consent, the doctor or staff may ask a court to name a guardian, also known as guardian ad litem that can give consent on behalf of the patient.
This is where it becomes a little confusing, should a medical malpractice situation arise, proving that the doctor didn’t get your informed consent, isn’t enough to win a suit against him. There must be a connection between the lack of informed consent and the injury sustained; which, then must be proved. This generally falls into two categories:
The patient, would not have consented to the treatment, and
The outcome would’ve been different.
The issue of informed consent is a hot issue in courts, which has varying laws in each state. So it is best to contact an experienced attorney who handles these types of cases should you find yourself in this situation.
As an aside, in a recent study, authors led by David Studdert from the University of Melbourne, argued that doctors, in particular surgeons, are often not sure which clinical risk they should disclose and discuss prior to treating a patient.
To get a clearer understanding in which disputes arise among doctors and patients, the authors looked at 481 malpractice claims and patient claims from Australia that involved allegations of deficiencies in the informed consent process.
They found that 45 (9 percent) of the cases were disputed duty cases, which means they involved head-to-head disagreements over a particular risk that should have been disclosed prior to treatment. You can read more about the study titled, “Doctor-Patient Disagreements Over Informed Consent Can Lead To Litigation” to get a clearer picture.
About the Editors: The Shapiro, Lewis & Appleton personal injury law firm, which has offices in Virginia (VA) and North Carolina (NC). The attorneys publish articles and edit the Legal Examiner for the Virginia Beach, Norfolk and Northeast North Carolina regions as pro bono service.
Rick Shapiro has practiced personal injury law for over 30 years in Virginia, North Carolina, and throughout the Southeastern United States. He is a Board-Certified Civil Trial Advocate by the National Board of Trial Advocacy (ABA Accredited) and has litigated injury cases throughout the eastern United States, including wrongful death, trucking, faulty products, railroad, and medical negligence claims. During his three-decade career, Shapiro has won client appeals before the VA Supreme Court, VA Court of Appeals, NC Supreme Court, SC Supreme Court, WV Supreme Court, TN Supreme Court, and three times before the United States Court of Appeals for the Fourth Circuit, underscoring Shapiro’s trial achievements. In addition, he and his law firm have won settlements/verdicts in excess of $100 million. His success in and out of the courtroom is a big reason why he was named 2019 “Lawyer of the Year” in railroad law in U.S. News & World Report's Best Lawyers publication (Norfolk, VA area), and he has been named a “Best Lawyer” and “Super Lawyer” by those peer-reviewed organizations for multiple years. Rick was also named a “Leader in the Law, Class of 2022” by Virginia Lawyers Weekly (total of 33 statewide honorees consisting of lawyers and judges across Virginia). And in September 2023, Rick was selected as a recipient of the National Board of Trial Advocacy (NBTA) 2023 President’s Award. Although many nominations were submitted from across the country, Rick was just one of eight attorneys chosen by the prestigious National Board which certifies civil trial attorneys across the U.S. Rick was also recently named to Virginia Lawyers Weekly 2024 Virginia’s Go To Lawyers Medical Malpractice. The attorneys awarded this honor are nominated by their colleagues and chosen by a panel from the publication.
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