Have you become injured and unable to work due to the unanticipated results of a medical procedure or treatment?
Making a decision to undergo any procedure — elective or not, emergency or not — often comes down to a question of risk versus benefits. Are the risks of the procedure worth the benefits? That’s a question only a patient and their family can decide.
Most medical procedures, no matter how minor or routine they seem, come with a certain amount of risk. It’s the duty of the doctor to inform their patients of the benefits, purpose and potential risks — including the potential for poor unanticipated but possible results— before getting their patient’s consent to proceed with a procedure. This is referred to as getting a patient’s “informed consent.”
Most hospitals and clinics require patients to sign an informed consent statement confirming that they understand the risks and benefits of a procedure or treatment before it is allowed to proceed. In some instances, when a patient opts to withhold consent, they may be asked to sign a statement saying that they have been informed about the risks and benefits but have decided against the procedure, despite the advice of their doctor.
Performing a Procedure Without Informed Consent Can Result in Medical Malpractice
If a doctor performs a procedure without a patient’s informed consent and the patient is injured, that doctor could find themselves facing a medical malpractice lawsuit.
However, there are some situations in which informed consent is not required:
- Emergency Situations: In situations of life or death, a doctor may forego getting informed consent.
- Routine Medical Treatment: Basic medical procedures (such as measurements of vital signs and other non-invasive tests) that present virtually no risk to the patient.
- Patients Who Are Unable to Provide Informed Consent: This includes minors, mentally challenged and unresponsive patients. In these situations, the doctor must get consent from a parent or guardian.
Were You Fully Informed Before Giving Consent for a Procedure or Treatment?
Since doctors are not required to disclose every possible risk a patient may face, medical malpractice claims based on informed consent can be difficult to pursue. They aren’t about medical errors such as misdiagnosis, failure to diagnose a condition or a delay in diagnosis. Rather, you must prove that the doctor failed to make sure you understood the risks associated with your procedure.
The courts generally apple two standards to determine if a doctor provided a patient with the right information to make an informed decision:
- Would any competent doctor have informed the patient about the risk that resulted in their injury?
- Would you have chosen not to go ahead with the procedure or treatment if you had been aware of this risk?
You can easily answer the second question, but expert testimony is required to answer the first one.
These cases are also complicated by the fact that just because a potential complication is listed doesn’t necessarily mean it is a known complication or that it isn’t the result of negligence. For example, a doctor might list every possible complication including death, but if a listed complication occurs because of medical negligence, we believe this is not a valid informed consent. Taken to its extreme, medical malpractice is a potential complication in any procedure, but that does not mean a doctor could list negligence as a known complication and use that as a defense in a medical malpractice case.
In order to prevail in an informed consent medical malpractice lawsuit, you need the representation of a medical malpractice attorney with the experience and expertise to obtain the evidence proving your health care providers failed in their duty to adequately inform you, obtain your consent, and/or provide care in accordance to the acceptable standards of care.
Succeed in an Informed Consent and Medical Malpractice Lawsuit
Lisa Levine is a nationally recognized Fort Lauderdale medical malpractice attorney known for her ability to prevail in challenging medical malpractice cases in Fort Lauderdale, Weston, Pembroke Pines, Miami, Coral Gables, Boca Raton, West Palm Beach and other South Florida communities.
Lisa possesses the skills, knowledge and resources to establish the standards of proof necessary to bring the insurance companies to the bargaining table. She will aggressively negotiate to get every cent you’re owed and isn’t afraid to go to court if a satisfactory deal can’t be reached.
If you were injured because a doctor failed to provide you with the necessary information you needed to make an informed decision about a procedure, contact the law offices of Lisa Levine to schedule a free consultation. We are here to hear your story, answer any questions you may have and provide helpful legal advice on the best way to proceed in your situation.
