Before any medical procedure or treatment, doctors must inform their patients fully about the risks involved. This is known as “informed consent.” If informed consent is not obtained, and the patient is injured, the patient may then have grounds to sue for medical malpractice.
What is Informed Consent?
Almost all medical procedures or treatments involve some form of risk. One of the doctor’s responsibilities is to provide patients with information about treatments or procedures so that the patient can then decide whether they should undergo the treatment, procedure, or test. This process of giving patients the necessary information and getting the patient’s to agree to a certain medical procedure or treatment is known as informed consent.
Typically, patients are required to sign a consent for that details the risks of a given treatment or procedure. Simply signing the form however does not necessarily prove that informed consent has been given. The procedure and the risks must be discussed with the patient and the patient needs to understand to the greatest extent possible, the risks he or she faces.
It is very important in medical malpractice law to determine whether or not a patient has given his or her informed consent. If the doctor does not obtain informed consent, and the patient would have chosen not to go through with the treatment had he or she known about the risks, then the patient could possibly sue the doctor for medical malpractice.
The Risks that Must be Disclosed
While a doctor is not required to tell the patient about every possible outcome that may happen as a result of the procedure or treatment, they must inform the patient of the risks that are important.
The specific elements of informed consent vary from state to state, but the essential elements are:
- Whether the physician failed to disclose the benefits, risks, and alternatives to the procedure that were reasonable under the circumstances,
- Some jurisdictions require a showing that a reasonable patient would have refused the procedure had they been informed of the benefits, risks, and alternatives to the procedure, and
- The procedure caused the patient to suffer an injury.
If you have a medical malpractice case, you should be aware that very few informed consent claims are brought and even fewer are successful. Generally, it turns in to a he said she said situation that the doctor often wins if they have a signed consent form on file. Additionally, if the patient’s version is believed, the patient still bears the burden of persuading the jury that s/he would have refused treatment had they been properly informed.
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