Failing to get informed consent can be malpractice!

John Fisher
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Stopping Medical Injustice

All patients have certain rights under New York Law.  Specifically, New York Public Health Law sections 2803 and 2805-d address what these rights are and mandate medical providers to aid patients in understanding their rights. 

There exist upwards of 19 statutorily designated rights afforded to patients.  All are not listed here, but they include receiving treatment without discrimination; receiving care in a clean and safe environment; the right to emergency care; access to non-smoking facilities; the right to refuse treatment; the right to privacy; access to your medical records; etc.

For purposes of this post, we focus in on the right to give informed consent to any treatment proposed by your treating medical professional.  Experienced medical malpractice attorneys know that a claim founded in medical malpractice can and has been based on deficient informed consent. 

Informed consent involves the following.  Patients must receive full disclosure as to the risks of a proposed procedure, the benefits there from, and even alternative treatments available to patients.  Informed consent typically comes from many discussions with a medical provider and will even be in writing. 

The benchmark between adequate consent and deficient informed consent is typically phrased like this: if a similarly situated patient would not have undergone the procedure underwent by the plaintiff had consent been fully formed, then there is all likelihood that consent was deficient.

The concept of informed consent is not new; in fact prior to statutory codification, the right was recognized by the common law from the seminal case, Mohr v. Williams.  The reason it is so fundamental is because every person is sovereign over his/her body; only the possessor has control of his/her own body. 

Of course, emergency situations may not require informed consent.  The patient’s body must have been physically invaded by the medical professional.  Consent may be unnecessary when the patient refused to receive consent.  If a procedure’s risks are commonly known by lay people, informed consent might not be necessary.  Additionally, if receiving informed consent may cause adverse effects upon the patient, a medical professional may dispense with the requirement. 

You might have read in our other posts that several important elements must be satisfied if a plaintiff-patient seeks civil recovery based on medical malpractice.  These same elements apply to medical malpractice cases founded in lack of informed consent. 

Remember, in order to state a claim for medical malpractice, there must have been a doctor-patient relationship that which gave rise to a duty owed to the patient.  Once there is a duty, the medical professional must adhere to the duty.  If the duty is breached and the breach caused the patient’s injury, the plaintiff may recover any and all actual damages.

But what do you think?  I would love to hear from you!  Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at [email protected]  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com

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