Informed Consent and Its Role in a Medical Malpractice Case

When a person goes in for any type of medical procedure, there is an expectation that a patient is supposed to understand the risks of the treatment and potential alternatives to the care that might reasonably be available. In order to ensure that the expectation is a reality, the doctor must have a comprehensive conversation with the patient to provide the information necessary so that the individual or his or her family can make an informed decision about which option to choose. If the medical professional does not obtain informed consent, then he or she may have committed malpractice.

Obtaining Informed Consent

Reaching the level of informed consent necessary varies depending on the situation. It is a matter of a medical professional reaching a level where the patient is educated enough to understand the potential risks and benefits of a particular course of treatment. This may involve a very basic discussion and consent for a simple procedure, such administering a flu vaccine, or a comprehensive conversation before obtaining consent for a complicated procedure such as open heart surgery.

As for potential alternatives to the proposed treatment, it is not necessary for the doctor to explain every possible other option that might exist. However, he does have to inform the patient about the alternatives that generally are considered reasonable, based on the applicable standard (discussed below). In order to demonstrate that there was informed consent, a medical professional should be able to establish the following:

• The individual understood the type of treatment or procedure being discussed. This often involves a back-and-forth discussion where the doctor or other healthcare provider explains the rationale behind pursuing a certain type of treatment;
• The reasonably available alternatives were discussed – this does not mean that the doctor needs to research every other course of treatment, but that the ones that are generally discussed under the relevant medical standard of care are explained thoroughly enough that the patient understands there is a choice to be made; and
• The risks and benefits of the treatment or procedure – although there are unforeseen circumstances that may occur, it is important that the patient understand that there are potential negative consequences to a particular choice.

Once a doctor or other medical professional has had the conversation necessary to obtain informed consent, he must go one step further and actually assess the patient’s level of understanding. In many situations where a person is facing a scary medical decision, it requires more than a quick discussion for the facts and options to register. The healthcare provider must ensure that there is a certain level of comprehension before moving forward. Finally, the medical professional must obtain actual consent. It is not enough for a doctor to provide information and then order a course of treatment without the patient affirmatively agreeing to the decision.

There are a number of possible problems with the nature of the consent that is obtained. The agreement to a particular type of treatment must be given without the patient feeling pressured or coerced to consent. It is critical that the doctor make the person understand that there is an actual choice to be made and that the signing of a consent form is not merely protocol. This may be difficult to accomplish in some situations, especially if there is a time-sensitive component to the decision. It also is incumbent on the healthcare provider to ascertain that the patient is competent to make the decision. If it is determined after a procedure has led to serious harm that the patient did not have the capacity to understand the nature of the decision at the time it was made, then the healthcare provider who obtained the consent may be liable for malpractice.

Qualifying Whether There has been Informed Consent

There is no simple answer as to whether or not a healthcare provider has obtained informed consent, but there are three generally recognizable standards, which are:

• The reasonable doctor – This analysis looks at what a prudent and competent doctor with a similar background and experience would have told the patient about a specific type of treatment or procedure. Many times, medical professionals rely on this standard to explain what they did, as the focus is on the healthcare provider and not the patient;
• The reasonable patient – This standard focuses on what a reasonable person would need to know in order to make a considered decision. This generally looks at patients, rather than contemplating the specific individual involved in a malpractice case; and
• The specific patient – This standard takes into account the particular traits of the individual who had the discussion with the physician or other healthcare provider. The subjective nature of the standard makes it difficult to support during a legal action.

The standard that actually is applied to a specific case varies depending on the jurisdiction in which the legal action is brought.

Stern Law, PLLC Advocates for Its Clients

All medical malpractice cases pose challenges, but it is crucial for the wellbeing of the person who was injured because of the negligence of a healthcare provider that powerful and compelling case is made to hold the wrongdoer accountable. At Stern Law, PLLC, our attorney worked for more than 30 years to get our clients the results that they need to pay bills, receive ongoing treatment, and compensate for pain and suffering. We understand the devastation wrought by a physician’s mistake and will do everything possible to get necessary relief for our clients. In addition, we provide resources for those who have been impacted by medical malpractice, whether directly or as the family or loved one of a person who was harmed by negligence. We have dedicated staff available to answer questions 24 hours a day, seven days a week for anyone who has a question or concern, regardless of whether or not you are our client. Call us at 1-844-808-7529 or fill out an online contact form in order to learn how we can help you get through this difficult time.