Medical Malpractice and Informed Consent

John Fisher
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Stopping Medical Injustice

Access to one’s own medical records; non-discriminatory treatment; the right to emergency services; non-smoking facilities; the ability to refuse treatment; privacy rights; clean environments; safe environments.  These are all rights that patients are legally entitled to.

In fact, the experienced Kingston medical malpractice attorney knows that there are many more rights such as these that are mandated by law.  Sections 2803 and 2805-d of the New York State Public Health Law address patient rights.  The law even goes are as far as to tell medical providers that they must help patients understand their rights.  

One very important right that every patient has involves the doctrine of informed consent.  This doctrine is about patients consenting to the treatment they may receive.  Without being asked for consent to treatment and without giving consent to receive treatment, patients should not be treated by a medical professional.  

This is so serious that unsatisfactory informed consent can be and has been the basis for a medical malpractice claim against medical professionals and medical providers.  The reason that informed consent is so serious lies in one fundamental principle; each and every person is the only one to have control over his or her own body.  It is an issue of sovereignty over oneself.  This principle was first laid out in a landmark case titled, Mohr v. Williams.  As stated above, patient rights are now on New York’s legal record books.

What is informed consent?  The word consent is easy enough to understand and is straight forward.  Consent means that patients must give medical professionals permission to treat them.  What makes consent, ‘informed’?  When patients agree to treatment after being told about the benefits of treatment, the alternatives to treatment, and the risks of receiving the proposed treatment, the patient has received informed consent.  

When does an experienced medical malpractice attorney know that a patient received deficient informed consent?  If the complaining patient had not been fully informed as to the above, and another patient of similar circumstance would not have consented to treatment, then the victimized patient received deficient informed consent.  After all, how can a patient meaningfully consent to something that he or she has not been allowed to fully understand?

Be warned that there are there are some ‘catches’, so to speak.  Informed consent does not apply to emergency care.  If the patient refuses to take informed consent, than the doctrine may not apply.  There must have been some sort of physical invasion upon the patient’s body.  Other ‘catches’ exist that you can discuss with a qualified attorney.  

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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