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Does Lack of Patient Consent Constitute Medical Malpractice?

lack of informed consent

A doctor or hospital might be liable for medical malpractice if a patient is injured due to a “lack of informed consent.”

According to a report from the Washington Post, medical malpractice is one of the leading causes of death in the United States. Careless and incompetent medical professionals cause thousands of preventable injuries or deaths each year. Despite the common belief that a medical malpractice case is due to misdiagnosis, surgical errors, and incorrect administration of medicines, the lack of informed consent is also a leading cause of negligence.

In the medical field, a medical provider or doctor has a legal obligation to obtain informed consent from the patient before treatment. A patient’s informed consent is an implied or expressed statement that they understand the purpose and risks of a proposed medical treatment and voluntarily agree to have the procedure performed. A patient can sue for medical malpractice if they suffer injuries as a result of an unconsented medical procedure.

While it’s not legally required in all cases, informed consent protects patients by ensuring that you’re aware of the benefits and risks involved, as well as your alternative treatment options. There are strict rules that must be followed in this process, or a patient might file suit against the doctor or hospital. Below, the attorneys at Pagan Law will provide detailed information about consent requirements for medical procedures.

What is a Lack of Informed Consent in Medical Malpractice?

New York law requires medical providers to obtain informed consent from the patient to perform or continue a surgery or procedure. However, if the doctor has not obtained informed consent and went on with the treatment, they have a lack of informed consent. This means that the doctor has withheld or failed to disclose crucial information from you. This situation may have legal implications, and you may file for medical negligence.

While medical providers don’t need to disclose every possible risk and alternative treatment, they must state all essential information that a reasonable patient would consider important. Failure to provide informed consent is an element of medical malpractice as it establishes that the healthcare provider breached a duty owed to the patient. 

Patient Consent: Necessary Information for Disclosure

As a patient, you have the right to know the details of your treatment plan, so you can decide for yourself before going for the treatment. You should understand the nature of the treatment suggested, the material risks involved, and any possible benefits that may result from it. 

Furthermore, you should also understand your alternatives and make an informed decision before any medical procedures. After you understand the particular treatment, you have the right to accept or refuse treatment. A signature on a consent form means that you (or your legally appointed representative) voluntarily agree to have your doctor provide you with any necessary medical treatment.

A patient can consent verbally or by using actions. However, it’s recommended to consent by writing or signing a contract that contains the following:

  • Your name and the name and qualifications of the doctor performing the procedure.
  • Your specific medical condition and the recommended treatment for it.
  • The purpose of such a medical procedure.
  • Any potential risks involved with such a procedure.
  • Any viable options and possible risks.
  • The success rate of the specific medical care.
  • The average time it takes for the patient to recover after the procedure.
  • The expected costs of the procedure and whether or not it will be covered by health insurance.

Many states have extensive guidelines for informed consent concerning medical procedures. The law also requires your doctor to offer you a chance to deliberate your concerns thoroughly to further help you in making fully informed decisions whilst you discuss the matter with your family. 

The Informed Consent Process

Generally, the informed consent process is very straightforward. Medical providers will thoroughly explain the treatment or procedure in question. After that, you are allowed to ask questions, and then they will ask you to sign a consent form that outlines the treatment or procedure.

Without a full explanation, a physician cannot obtain informed consent or go through with the medical procedure. If the doctor performs the surgery or treatment without your legal consent, you can reach out to an attorney because you may have claims for a malpractice case. 

In most non-emergency treatments, informed consent is a crucial part of your legal rights. However, obtaining informed consent in emergency situations may be impossible or impractical. For instance, if you unexpectedly stop breathing, collapse, and are unconscious, a doctor must act quickly to save your life without asking for your permission.

Also, bear in mind that the purpose of informed consent is to inform you of any surgical risks before receiving treatment. It’s not the equivalent of agreeing to take your chances or protect doctors from medical malpractice claims. If a patient gave informed consent, it serves only to acknowledge that you agreed to have the procedure performed per industry-accepted standards.

Informed and Express Consent: What’s the Difference?

Informed and express consent are two terms often used interchangeably in the medical field, but while they are related, they aren’t the same thing. Generally, express consent is one part of the broader informed consent process. Let’s get into detail about each type of consent.

Express Consent

In most cases, patients should give their express consent before undergoing a non-emergency treatment. This allows you to freely render your agreement to receive a particular treatment or procedure. In its simplest form, it’s like signing an authorization form or putting their signature on the line of an agreement.

To give such consent, a patient must be of sound mind and body. If you’ve ever had a surgical procedure or imaging test (MRI, CT scan), you may have received a document that described the procedure and contained a list of potential complications. This contains helpful information on follow-up care in case those complications will occur.

Informed Consent

Unlike express consent, informed consent goes beyond agreeing to go through a medical procedure. As mentioned earlier, a competent doctor will inform the patient of any potential risks involved in the endorsed treatment plan. This also includes possible outcomes and other critical information.

The process allows a patient to make an informed decision about their treatment option, which can help them feel more comfortable. It’s also imperative that a patient understands what they agree to before they sign any documents that could bind them to a certain course of action.

Both express and informed consent are pivotal parts of medical care. However, express consent shouldn’t be confused with informed consent because it doesn’t account for the fact that there may be risks associated with the procedure. Express consent can be overridden by informed consent if there are discrepancies between what was said and what was done.

The difference between these two types of consent is crucial to understanding medical malpractice. When there are problems with informed consent — like when a doctor fails to inform the patient of all relevant information — that failure can be considered malpractice. 

Although lack of informed consent is negligence, not all associated issues automatically constitute malpractice claims. If the doctor explained everything in detail and the patient gave express consent, it may not be considered malpractice — even if other issues resulted in an injured patient.

Two Fundamental Issues Arising From the Consent Form

A medical malpractice claim for a failure to obtain express consent may occur in several situations.

In some cases, the following scenarios might also lead to a medical malpractice lawsuit:

  • The patient’s complication was not listed on the agreement form.
  • The patient suffered more well-known complications than those provided in the form.
  • The doctor described potential complications that differed from those in the form.
  • The physician performed a different procedure as opposed to what is stated in the consent.

Let’s discuss the two common problems that may arise from a lack of informed consent.

Failure to Identify Complications

As stated above, a reasonable physician should explain all relevant information when delivering informed consent, and that includes identifying potential complications. However, a consent form doesn’t need to list every single complication that has ever been linked to the procedure. It’s impossible to list every single complication, especially if this is a rare case.

If a complication is rare but still well-known, an argument can be made that it should have been listed in the consent form. Failure to do so may be considered medical negligence, especially if the treatment plan caused harm to the patient. When this occurs, the injured patient can file for medical malpractice claims. 

Failure to Describe Complications

In addition to identifying possible complications, the law requires medical providers to accurately describe them to the patient before proceeding with medical treatment. It’s not enough that a doctor lists them on the consent form. They should inform the patient about each complication. Failure to do so may result in serious injury or even death for the patient, who was unaware of what might happen during the procedure.

For instance, the doctor states that the patient may experience temporary numbness around the incision site. However, they didn’t explain that this could be permanent. Otherwise, a patient could have refused to go through that particular procedure.

Another example would be if the consent form stated that a specific complication only affects 1% of patients, while medical facts state that it happens to 10% of patients undergoing that procedure. A patient may argue that they wouldn’t have undergone surgery if they had known the actual risk of a complication. If these examples or any related situations happened to you or your loved ones, you can file a medical malpractice case. 

Furthermore, experienced injury lawyers like the team at Pagan Law can also consider the possibility that some patients have been pressured into giving informed consent — examples include if the patient is suffering from dementia, intoxicated, or under the influence of drugs or medications. If a patient gave informed consent, they should be capable of either receiving information or understanding what they are consenting to.

Lack of Informed Consent: Is it a Basis for Medical Malpractice Claims?

If a doctor operates without the patient’s consent, it could be a ground for medical malpractice. Consent is a foundational principle of medical practice, and violating it is considered to be a violation of professional conduct. The standard of care in the United States requires that doctors obtain informed consent from a patient before performing any procedure or treatment.

No one wants to be the victim of a medical or surgical error. However, a consent violation may not be enough on its own for a medical malpractice claim. To prove medical malpractice, you must attest that the lack of informed consent was the proximate cause of your injury. In addition, you have to demonstrate that a reasonably prudent person in the patient’s position would not have undergone surgery if they had been fully informed about potential risks.

You also need to show that the error was “below the standard of care” and that it was the sole cause of your injury. A medical malpractice suit may not be an appropriate claim to file if you didn’t sustain any physical injuries or damages during the process. Similarly, you cannot sue for malpractice if the doctor fixes a severe problem that was discovered during the course of the treatment. There are several factors to consider, so the help of an expert legal team is indispensable.

Consent violations might be a factor in a medical malpractice lawsuit if, for example:

  • You received a separate injury, which would have been avoided if the doctor had obtained proper consent.
  • The doctor’s failure to obtain your proper consent caused additional pain and suffering or exacerbated your existing issue.

In some situations, other theories of liability may apply, including a claim for an intentional tort. Though deliberate tort is an occasional basis for medical malpractice cases, they can still occur from time to time. Medical torts are committed every time a member of the medical profession fails to follow the correct standards of care for their patient. Even if a doctor acts in good faith and with the best intentions, they can be liable for torts if they fail to obtain informed consent from their patient.

Moreover, medical providers shouldn’t make patients feel like they don’t have any other options for their health. If a doctor makes you feel obligated to receive medical treatments, and you suffer harm due to the procedure, you could file a medical malpractice lawsuit. Consent should always be voluntary and free from pressure and coercion.

Is Implied Consent a Ground for Medical Malpractice?

In several scenarios, implied consent can be defined as “the act of providing consent or authorization that isn’t directly expressed or stated.” Unlike most surgical procedures, patients give implied consent by simply attending the doctor’s office. For instance, let’s say you’ve gone to get a COVID vaccine. You have not given your consent to the physician. Instead, you gave implied consent when you showed up and willingly received the vaccination. Other examples include attending the clinic to undergo additional tests, like an ultrasound or X-ray. The act of showing up implies that you don’t object to the procedure.

Similarly, doctors will typically begin treatment in an emergency without waiting for explicit consent from a patient (especially if he or she is unconscious). They will need to deliver immediate treatment to save the patient.

While patients must communicate their willingness to proceed with the treatment, implied consent shows an agreement without the need for explicit communication. This refers to a doctor’s reasonable belief that a patient would have accepted treatment if they had been aware of all the relevant information.

If implied consent applies to a case, it can help mitigate the effects of any negligence penalty or help move the case in a direction that benefits the defense. It allows the doctor to argue that they followed the patient’s wishes, even if they were not explicitly stated. For this reason, you must have expert legal representation to argue your case. Otherwise, the lawsuit filed is unlikely to succeed.

Can a Patient Limit or Withdraw a Consent?

Unless a procedure is completed, you can change your mind and opt out of the treatment at any time, even if it has begun. Your doctor must respect your decision, and any attempts to persuade you to do otherwise would be unethical. Most consent forms state that patients can stop or withdraw treatment anytime, even after signing the form. To do this, you must speak to your attending physician as soon as possible.

There are no prerequisite requirements when you wish to withdraw or alter the consent. In addition, you don’t have to provide a reason for your option. However, you must be declared fully capable of making that decision at the time of the request. If your decision is final, the provider will ask you to sign an updated agreement for documentation.

Talk to an Experienced Medical Malpractice Lawyer Today 

In the medical setting, a patient’s consent is one of health care’s most critical ethical elements. It preserves your right to control what happens to your body while allowing physicians to do their jobs without constant worry over potential litigation. 

Healthcare is a collaboration between the doctor and the patient. While the physician is ultimately responsible for designing a plan to help the patient achieve their health goals, it’s pivotal to remember that you should be an active member of the team and an essential part of your healthcare. That’s the essence of informed consent!

You must address the impact of a lack of informed consent in medicine. If a doctor failed to state all necessary medical facts about your treatment, and it resulted in complications or further injuries, you should consult the best lawyers at The Pagan Law Firm. We help patients understand their legal rights after an injury. You will experience a compassionate and competent attorney-client relationship with us as we help you assert your rights.