Many of you have heard the phrase, what one doesn’t know cannot cause any harm. While this may be true in some social situations, it is rarely true in the medical setting.
Experienced medical malpractice attorneys know that doctors must fully and completely inform patients in regard to the aspects of a proposed procedure as well as the risks and complications associated therein. Benefits of the procedure must be explained, as should alternative treatments. This is referred to as informed consent.
If a patient has not given his or her informed consent to a medical procedure, then the medical professional should not perform the procedure. What information is necessary to satisfy the informed consent requirement? The answer is any and all relevant information that which would play an impact on the patient’s decision to have the surgery or not. But don’t get carried away with this statement; the doctor does not have to talk about everything under the sun.
Whether or not informed consent is adequate is judged by a reasonable person standard, also stated in the medical malpractice field as the reasonable patient standard. Therefore, the offending doctor doesn’t get to decide that he or she gave adequate informed consent to the patient. It is judged from the patient’s perspective. In general, the question to be answered is, would another reasonable patient, in shoes similar to the injured patient, have consented to the surgery if given the same information that which the injured patient received. If another patient under similar circumstances would not have consented to the surgery, then the doctor can be found negligent.
Note, however, that the deficient consent must have been the proximate cause of the patient’s injuries; the sufficiently related and uninterrupted consequence of the patient’s harm. Proving this is easier said than done. This is why the experienced medical malpractice attorney will use expert testimony to show the jury as to the depth of consent the treating doctor should have given the patient. The expert will also testify as to how the treating doctor fell short of giving the patient informed consent.
Causation is just one element out of several that must be pleaded and proved in order to win a medical malpractice claim. The attorney will have to show that: a doctor-patient relationship existed; the doctor breached his or her duty to the patient; the patient suffered 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.