Gross Negligence and Lack of "Informed Consent"
While we tend to trust our doctors to know what’s best, we have the final say in our care and treatment. Having that final say means having all of the information from our doctors, being able to understand it, making choices for our medical care based on that information, and having our doctors follow through. That is a lot of steps and, unfortunately, some doctors miss a step or two. What happens when a doctor doesn’t give a patient all the relevant information or gives a patient treatment he or she didn’t consent to? Here is a brief overview of informed consent and gross negligence in medical malpractice cases.
Nearly every state has laws that protect the right to of a patient to receive information about his or her medical condition, treatment choices, risks associated with the treatments, and prognosis. This information must be presented to you in plain language terms that can be easily understood, and also with sufficient amount of detail so that you can make an "informed" decision about your health care. If you have received this information, any consent to treatment that is given will be presumed to be an "informed consent."
A patient must be competent in order to give his or her informed consent. Adults are generally presumed to be competent, unless they suffer from mental illness or other impairments. Minors, unlike adults, are generally presumed to be incompetent. Therefore, they are unable to give consent to medical treatment and procedures. Instead, a parent or guardian of the child must give consent on the minor’s behalf.
Negligence, in very general terms, is when someone does something wrong and causes harm to someone else. Within the context of medical malpractice, "gross negligence" refers to conduct so reckless or mistaken as to be virtually obvious to a person with no medical training. Examples include a surgeon amputating the wrong limb or leaving a surgical instrument inside a body cavity of the patient.
Some states allow medical malpractice lawsuits grounded in gross negligence without the need for expert testimony, based on a legal doctrine called res ipsa loquitur, meaning "the thing speaks for itself." So if a surgeon fails to obtain informed consent prior to a procedure, and the procedure results in injuries, a patient may sue for gross negligence, perhaps without the need for expert testimony (since the negligence would be obvious to a layman).
A doctor who fails to get a patient’s informed consent for non-emergency treatment could be charged with a civil and/or criminal offense such as a "battery" or an unauthorized touching of the patient’s person. In order to win a lawsuit alleging that a doctor performed a treatment or procedure without informed consent, you generally must prove that:
- The medical professional failed to disclose the risk or the outcome of the treatment or procedure;
- Had you known about the risk or outcome, you would not have agreed to the treatment or procedure; and
- You suffered a harmful consequence due to the unauthorized treatment.
Negligence and informed consent can be tricky legal concepts, and it’s not always easy to know whether a doctor has acted properly. If you would like to get a clearer idea of your legal options, you can consult with an experienced medical malpractice attorney. You can also visit FindLaw’s medical malpractice section for more general information on this topic.