Doctors and other medical providers are required to acquire a patient’s consent before performing a procedure, including surgeries, non-emergency treatments, medical research participation, and invasive diagnostic procedures. However, the consent must be “informed” and in writing.
If you have undergone surgery or other medical procedure, the medical provider should have a signed informed consent document in your file, signed by you before performing the medical procedure to confirm that the doctor met his duty regarding informed consent. Failure to obtain informed consent before treating a person is a form of medical malpractice. If you have undergone a procedure without obtaining truly informed consent, you should speak with a medical malpractice attorney today.
What is Informed Consent?
Patients have the right to full disclosure of benefits and risks before deciding whether to undergo a medical procedure. In other words, if a patient does not have all relevant information about a medical procedure, he or she is unable to make an “informed” decision about whether to go ahead with the procedure.
Therefore, a doctor or medical provider must provide some required information to a patient including:
- An explanation of the specific diagnosis and the prescribed medical procedure;
- The “material risks” and side effects associated with this procedure;
- Anticipated benefits associated with the medical procedure, including the purpose of the treatment or procedure;
- The benefits and risks of refusing the procedure or treatment;
- An explanation of any alternatives to the medical procedure, including the benefits and risks associated with the alternatives; and,
- Why the doctor is prescribing this particular procedure over any alternative forms of treatment.
If a patient is not provided the required information to make an informed decision about a procedure, the doctor could be held liable for medical malpractice. However, to constitute medical malpractice, the failure to obtain informed consent must have caused damage or harm to the patient.
It is the patient’s burden to prove that the lack of informed consent caused the patient to suffer damages or harm. In many cases, the question is raised of whether a reasonable and prudent person presented with the required information would have declined or accepted the treatment. An experienced NY medical malpractice attorney can evaluate the facts in the case and provide a legal opinion on whether the patient has a potential medical malpractice claim.
Are There Cases in Which Informed Consent is Not Necessary?
There are some situations in which a medical provider or doctor is not required to obtain informed consent before performing a medical procedure. Four common situations that may not require informed consent are:
- A risk of significant physical or emotional harm exists;
- The doctor is unable to obtain informed consent because of an emergency that required immediate action;
- A patient is unable to provide informed consent because he or she is unable to communicate or is unconscious; or,
- The procedure is a compulsory test, such as performing tests for mental health reasons.
Even though a doctor claims that the lack of informed consent falls into one of the exclusions or exceptions, you should have a New York medical malpractice attorney review your case to explain your options and legal rights.
You Have the Right to Understand Your Medical Care
The purpose of obtaining informed consent in writing is to ensure that a patient understands fully the risk and benefits of a treatment. As a patient, you have the right to continue to ask questions until you feel you understand fully what your doctor is explaining to you. You also have the right to ask the doctor to explain the procedure and treatment in common terms and words that you can understand, instead of technical medical terminology.
If you believe you are the victim of medical malpractice, contact an NY medical malpractice attorney immediately to discuss filing a claim for damages. Contact the New Jersey medical malpractice attorneys to learn about your options.