Understanding Informed Consent
Sometimes the reason a patient can file a medical malpractice lawsuit is that he or she was not properly warned about the risks of certain medical treatment. Now this does not mean that a doctor had to tell you about anything that could possibly go wrong. But you do have the right to make an informed decision, to give informed consent. This means that a doctor has to tell you about the prominent, known risks of a given procedure.
If you were harmed by a risk that you should have been told about beforehand, then you might have a medical malpractice case on your hands.
Now a physician might hand you a consent form before you undergo treatment, but signing this does not necessarily mean that you have been given ample notice about the inherent risks. It will vary according to the state of the doctor or hospital you are suing, but there are two different ways of assessing whether or not you suffered from a doctor’s failure to warn.
The first is determining whether or not a competent doctor would have provided a patient with a warning about the risk the patient ended up getting hurt from. This will require a medical expert as witness in your case, but the defendant can have a medical expert on their side too. It can probably come down to whether or not the risk was common enough to necessitate a warning.
A second standard, one followed in some states, is whether or not the average patient would have chosen to get different treatment if they had been aware of the risk. If a state goes by this standard, then a doctor has to also offer a patient some other choices in treatment, even if only one could be recommended.
There are a couple of situations, however, where a doctor does not need informed consent to provide risky treatment. One of these circumstances is an emergency; in the ER, a doctor has no time to disclose the risks to a patient whose life is on the line. It does not matter if the patient would have decided against that procedure.
Then there is the situation where a patient requires life-saving treatment, but the patient is racked with anxiety. Say that a weakened and anxious patient is suffering from a brain tumor. A doctor can tell the patient about a life-saving surgery, but the doctor is allowed to refrain from details about the risks of the surgery, even if they include paralysis. In this case, the doctor is justified in proceeding with the necessary surgery without full disclosure.
If you have any questions about what constitutes medical malpractice, then do not wait to contact the Whitley Law Firm. The team of Raleigh personal injury lawyers at our firm can offer you the answers, as well as the legal advocacy that you deserve.