In most situations, medical malpractice comes in the form of some sort of physical harm caused to a patient due to a doctor’s mistake, such as anesthesia errors or delayed diagnoses. However, medical malpractice can actually be much subtler, like failing to get informed patient consent before performing a medical procedure or prescribing medication. If a patient does not know fully what to expect with a treatment, then it could be problematic or even dangerous for them, which could constitute a medical malpractice claim.
Informed patient consent exists only when a patient has been given ample time to review the benefits, risks, and actual steps taken for a medical procedure. To achieve informed patient consent, a doctor will usually hand a thorough brochure or file to a patient, ask him or her to review it, and schedule another doctor’s appointment to request that treatment. Finalizing patient consent will then be achieved through a patient signature on a particular form.
Written information with the patient’s signature below is the ideal for informed patient consent but it is not always necessary. Some judges and juries have maintained that informed patient consent was achieved simply by verbally discussing the most common risks and benefits of a treatment with a patient in the doctor’s office. Whenever you talk to your doctor about a medical problem, you should always request a copy of any medical records afterwards to ensure what was actually said is recorded, just in case you have to challenge the existence of your informed consent later.
When Informed Patient Consent is Not Needed
It is ideal for every patient to know every nuance of every medical procedure or medication they need or encounter. The reality is that this is not always possible, and so informed patient consent is not always strictly necessary.
A doctor may be able to perform or begin a treatment without informed patient consent if the patient is:
- Unconscious due to an injury or severe illness, or otherwise unable to respond.
- Unable to give consent due to a mental illness or cognitive disability.
- Deemed legally insane by a court of law.
- Suffering an injury that may cause imminent loss of life.
To this end, most emergency medical technicians are not bound to laws of informed patient consent. By the nature of their work, many people who they assist are in a life-or-death situation or unconscious from an injury. The same legal protection from lack of consent malpractice may also extend to surgeons and nurses in emergency operating rooms, who are tasked with making split second decisions to try to save a patient’s life, whether or not that patient has explicitly given permission to do so.
Charleston Medical Malpractice Attorneys – 304.605.2040
As it can be seen, there is some gray area regarding informed patient consent and claims of medical malpractice. Did your doctor really need to give you all the information about your treatment in written form? Did an emergency room surgeon make the wrong call and should have known better? The details of each individual case will ultimately play a large role in where liability for patient injury lies.
If you think that you were harmed due to your lack of informed patient consent, do not hesitate to call 304.605.2040 to connect with Berthold Law Firm, PLLC and our personal injury lawyers in Charleston. With our 40+ years of legal experience and tens of millions of dollars recovered for past clients, we think you will be comfortable and confident in our ability to provide you with exceptional legal service, starting with a free consultation to figure out if you have a claim. Contact us today to get started.