Understanding Informed Consent in Medical Malpractice Cases

Posted on behalf of Phillips Law Group on Sep 04, 2018 in Medical Malpractice

Health care providers are responsible for obtaining your informed consent before any form of medical care is given. This includes informing you of the benefits and risks involved in your treatment or procedure.  

If a health care provider fails to obtain your informed consent before providing treatment and causes harm, you may have a valid case for medical malpractice. The health care provider could be held liable for your injuries and complications.

Contact our Phoenix medical malpractice attorneys at Phillips Law Group today for a free, no obligation consultation. We can review your legal options and determine if your claim is entitled to pursue compensation for medical bills, lost wages, and pain and suffering.

What is Informed Consent?

Informed consent is giving your permission to proceed with medical treatments or procedures. You have the legal and ethical right to make decisions regarding the care and treatment of your body. The only way you can do so is by being informed of the possible outcomes of that care, including potential negatives.

Your health care provider should inform you about the benefits and drawbacks of a medical treatment or procedure before it is performed. Once you know how the treatment could help or hurt you, you are able to decide if you wish to go through with the treatment or decline it.

Informed consent includes:

• Your diagnosis
• A discussion with your doctor and not his or her representative
• An explanation of the treatment your doctor recommends and why
• The treatment’s risks and benefits
• The risks and benefits of not undergoing the recommended treatment
• Considerable alternatives and its risks and benefits

In most situations, you will be asked to sign a statement verifying that you were correctly informed about the treatment. This document includes your name, signature and date as well as the signature of your health care provider or the medical facility’s legal representative.

With your informed consent, your health care provider can deliver this treatment only. The only exception is in cases where your life or health is in danger, where the doctor may need to exceed the scope of your consent to take reasonable actions to treat your condition.

Exceptions to the Rule of Informed Consent

Informed consent is required in all treatment cases except:

• In emergency situations when the patient is not conscious and treatment is needed to save his or her life
• Routine treatments such as standard tests or taking a patient's vitals
• In cases of emotionally fragile patients, if a doctor knows the patient’s distress will cause him or her to refuse necessary treatment

A patient must be competent to give informed consent. If an adult patient suffers from a mental illness or other impairment, he or she may not be considered competent in order to give informed consent.

Minors are generally unable to give informed consent. A parent or guardian must give consent for treatment on behalf of the minor.

Proving Failure to Obtain Informed Consent

To prove that your health care provider did not obtain your informed consent prior to a procedure or medical treatment, you must have suffered an injury due to the treatment or procedure. This must be connected to a risk you were not informed of.

You must also prove the elements of medical malpractice for your case to be valid:

• Your doctor had a duty to get your informed consent before the treatment or procedure was performed
• Your doctor failed to obtain your informed consent, which commonly occurs due to a failure to completely discuss a treatment’s risks
• You would not have consented to the procedure or treatment if you were informed of all associated risks
• You suffered harm caused by the treatment or procedure

An attorney can help you secure the evidence needed to prove your lack of consent. Medical records as well as expert medical witnesses may be used to establish what information you were given and what information should have been provided.

Get Legal Help Today

If you were injured by negligent medical care, the Phoenix medical malpractice attorneys of Phillips Law Group are available to assist you. Contact our attorneys for a free consultation and learn what legal options you may have for pursuing compensation for a medical malpractice lawsuit.

There is no obligation to pursue legal action with our firm, and should you choose to do so, there are no upfront fees due. You only pay us if we successfully recover compensation for you.

Call 1-800-706-3000 or complete our Free Case Evaluation form now.

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