It can be an intimidating or overwhelming experience to have to deal with medical procedures, healthcare treatment options, doctors, and hospitals. Your physician has a legal and ethical duty to give you a thorough explanation of all aspects of your procedure or treatment. You should know the risks and reasonable alternatives to the proposed treatment. You should also have the opportunity to ask questions. There needs to be a direct communication between you and your physician, where your doctor takes the time to ensure that you understand all the important facts about your procedure. This is known as informed consent.
This process doesn’t happen the way it should when a doctors rush, are distracted, or only put the information in writing. The fact that you signed an informed consent form does not mean that you provided full consent. Your doctor must make the effort to be sure that you understand what you are consenting to. You may have a case of medical malpractice if your doctor fails to inform you about risks associated with your treatment and that leads to your injury. This can be true even if you have signed a consent form.
You also may have a case if your doctor failed to discuss with you other medical alternatives available or possible outcomes of not pursuing treatment at all. If you had known information about an alternative treatment, you may have chosen another option.
What Is Required of Physicians?
Physicians have a moral, ethical and legal responsibility to you as the patient. They must conduct a thorough informed consent discussion before a medical treatment or procedure.
Physicians are responsible for ensuring that their patients understand the procedures, risks, benefits, and alternative treatments. They have a duty to explain the medical concepts in words their patients can understand. As the patient, you must be mentally competent, and your informed consent must be given freely and voluntarily.When you are not fully informed of the risks, the doctor has in essence made the decision for you. According to the American Medical Association a physician must discuss with the patient:
– The patient’s diagnosis, if known
– The nature and purpose of a proposed treatment or procedure
– The risks and benefits of a proposed treatment or procedure
– Alternatives regardless of their cost. This includes the extent to which health insurance covers the treatment option
– The risks and benefits of the alternative treatment or procedure
– The risks and benefits of not receiving or undergoing a treatment or procedure
As a patient you should have the opportunity to ask questions to gain a better understanding of the treatment or procedure. Only then can you make an informed decision to proceed or to refuse a particular course of medical intervention.
The important piece for you to remember is that you are entitled to a thorough explanation from your physician of your care. This includes the methods and risks of any medical intervention before agreeing to it. You are also entitled to a discussion about reasonable alternatives for your care and treatment. This is so you can make your choice with all the facts in hand.
Risks That Must Be Disclosed
Physicians cannot be expected to forewarn of every single risk. Some complications cannot be foretold. However, they must disclose known material risks, such as the risk of death or serious injury. The physician also has a duty to be aware of your particular medical history and risks that are more likely to occur because of your background. Information is considered “material” where a reasonable person would deem it significant in deciding whether or not to get the treatment involved.
Exceptions Where Informed Consent Is Not Required
Informed consent is not required in certain specific circumstances. These include the following situations:
- Medical emergencies where there is no time to inform the patient of the risks in order to save their life;
- Where disclosure may upset an emotionally fragile person enough that they would not be able to make a rational decision about their care, a failure to disclose may be excused—the doctor must be able to demonstrate a valid reason not to disclose all the risks based on the patient’s particularities;
- The patient is incapacitated by age or disability—in this event, a guardian may be called upon to give consent for them; or
- Routine treatments with minimal repercussions, e.g., checking blood pressure.
In these cases, the patient may not sue the physician for a lack of informed consent even if they would have refused consent.
Proving Liability in Informed Consent Lawsuits
Showing a lack of informed consent in a medical malpractice suit requires that the injured plaintiff prove all the following elements:
- The doctor had a legal duty to receive the patient’s informed consent for the treatment or procedure;
- The doctor failed to give all information that a reasonable person would expect them to disclose to make an informed decision about treatment;
- The undisclosed risk occurred;
- A reasonable person would have made a different decision about their own treatment based on the undisclosed information; and
- The treatment or lack of treatment was the proximate cause of the person’s serious injuries.
Keep in mind that the issue is not whether the injured plaintiff would have made a different decision if they had had additional information. The question is whether a hypothetical reasonably prudent person would have made a different decision. If any of the above elements are missing, the plaintiff will not have a successful case.
Consult With A New Jersey Malpractice Attorney
If you suspect you have been a victim of medical malpractice or a violation of the informed consent laws, the experienced legal team at O’Connor, Parsons, Lane & Noble can help. We urge you to consult with us as soon as you suspect you have been subject to negligence, as you only have two years to begin a medical malpractice claim. We don’t expect you to come to us knowing all the answers—that’s our job. The initial consultation is free, and doesn’t put you under any obligation to hire our firm.
Our team has a record of success in obtaining settlements and verdicts for our clients for medical negligence. Recently we tried and won an informed consent medical malpractice case where a woman suffered bladder incontinence due to a complication from back surgery. The jury agreed that the neurosurgeon failed to advise the patient about the risk of neurogenic bladder during surgery. The patient and her husband were awarded $1.8 million for their claim. You can read about more of our results and a sampling of our client testimonials on our website.
Reach out today to discuss your medical malpractice informed consent case by contacting us online or by phone at (908) 928-9200.