Informed Consent in Cases of Medical Malpractice

If you were injured as the result of a medical procedure or medication, the concept of informed consent will likely arise in any claim for your injuries that you bring against a medical professional. In many situations where medical care or treatment is provided to an individual, medical professionals are required to obtain the patient’s “informed consent.” Although the specific definition of informed consent may vary from state to state, it means essentially that a physician (or other medical provider) must tell a patient all of the potential benefits, risks, and alternatives involved in any surgical procedure, medical procedure, or other course of treatment, and must obtain the patient’s written consent to proceed.

The concept of informed consent is based on the principle that a patient has the right to prevent unauthorized contact with his or her person and, thus, a physician has a duty to disclose information to the patient so that he or she can make a reasoned decision regarding treatment, based on an understanding of the treatment to be provided. In many situations, the failure to obtain informed consent is a form of medical negligence, and may even give rise to a cause of action for battery. In certain situations, informed consent is an absolute necessity. For example, in any medical trials or experiments that receive federal funding, informed consent must be obtained from any human participant or subject.

The Role of the Physician

Physicians themselves, rather than a representative, nurse, or other related health care professional, are the best choice to speak to patients about informed consent. In discussing the matter with a patient, the physician should cover:

  • The patient’s diagnosis, if it is known;
  • The nature and purpose of the proposed treatment or procedure, as well as the procedure’s likelihood of success;
  • The benefits and risks of the proposed treatment or procedure;
  • The alternatives to the proposed treatment or procedure;
  • Alternatives to the treatment or procedure should be discussed regardless of their cost and regardless of whether they will likely be covered by the patient’s health insurance;
  • The risks and benefits of an alternative treatment or procedure;
  • The risks and benefits of not receiving or undergoing any treatment or procedure.

A physician should also ensure that patients understand what they’re hearing. In fact, some hospitals now require physicians to participate in courses on communication skills. The patient, or the patient’s legally authorized representative consenting to the treatment on the patient’s behalf, must sign and date the informed consent documents, and must be given a copy of the informed consent documents once they are signed and dated. A copy of those documents should also be placed in the patient’s file.

The Role of the Patient

Although a physician is required to inform a patient about benefits, risks, and alternative treatments, patients must also play a part in the informed consent process. Patients must listen to the physician and should ask questions of the physician if they do not understand, or if they would like more detailed information.

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