Lack of Informed Consent and the Law

John Fisher
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Stopping Medical Injustice

Imagine waking from surgery and finding out that the surgeon decided to perform a different procedure on you; one that you were not expecting.  This would be a problem, right?  Right!  It seems fairly obvious that most patients would be aghast with the very thought of a surgeon doing whatever he/she chooses while a patient is fully sedated.

The experienced Kingston, New York attorney knows very well that doctors should never perform surgery or any type of procedure without first garnering the consent of the patient.  Not just any consent, but specifically, the patient must give what attorneys call “informed consent”.

What is informed consent?  It is full disclosure of the risks, benefits and alternatives to the surgery or procedure that the doctor wants to perform on the patient.   This way, the patient can choose to have the procedure or opt for something else, armed with meaningful knowledge of the consequences either way.  If it is clear that the patient does not understand, or cannot understand, then there has been no informed consent. 

There are some exceptions to the informed consent requirement.   In emergency situations, informed consent might not be required.  For example, an unconscious patient is brought to the hospital and doctors treat the patient’s injuries.  The medical staff has no reason to know why the patient would not want treatment.  It is perfectly reasonable for the doctors to treat the patient in this situation. 

If getting the patient’s informed consent will cause the patient some sort of harm or unreasonable distress, then such consent may not be needed as usual. 

Regardless of these exceptions, the goal is to always make sure that doctors are getting the informed consent needed. 

What happens when there was no informed consent?  It may depend on where the failure took place.  But generally speaking, if there was not informed consent, and a reasonable patient would have opted out of the procedure if there was informed consent, then a medical malpractice claim can be made against the offending doctor.  Note, however, that the patient must have suffered some form of injury in order for the claim to stand. 

So long as the above is satisfied, the victim can sue the offending doctor for negligence, aka medical malpractice.  The patient may also have a valid basis to sue the doctor for battery (the intentional and offensive intrusion upon the body of another). 

What if the patient signed a consent form before surgery?  Consent forms are merely paper that lack substance if not accompanied by some sort of full disclosure.  Like stated above, the patient must be told the risks, benefits, and alternatives to the recommended treatment. 

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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