Do I need this surgery now or can it wait? Which medicine is right for me? We trust our doctors to give us enough information and expertise so that we can make our own important medical decisions. But how do we know if we’re getting all of the information (and enough of it) to make informed medical choices? And what happens if we get treatment without knowing the risks? This article is a quick introduction to informed consent and medical malpractice cases that can arise from unauthorized treatment.
Virtually all states have recognized, either by legislation or by common law, the right to receive information about one's medical condition, treatment choices, risks associated with the treatments, and prognosis. The information must be in plain language that you can easily understand and must be comprehensive enough to allow you to make an "informed" decision about his or her healthcare. If you have received this information, any consent to treatment that is given will be presumed to be an "informed consent."
The informed consent process isn’t only an ethical obligation for doctors -- it is also a legal one. State laws often take a patient-centered approach. Generally, the doctor (or one of his or her representatives) is required to discuss your diagnosis, the nature of the recommended treatment, any risks associated with the treatment, alternative forms of treatment, the risks associated with those alternatives, and the consequences of taking no action at all. Many hospitals, doctor’s offices, and treatment centers require their patients to sign informed consent forms so that consent will be in writing.
Special Cases: Competency
In order to give his or her informed consent, a patient must be competent. Generally, adults are presumed to be competent. However, this presumption can be challenged in cases of 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. In these cases, the parent or guardian of the child must give consent on the minor’s behalf.
If a doctor fails to obtain informed consent for non-emergency treatment, he or she may be charged with a civil offense like gross negligence and/or a criminal offense such as battery or gross negligence which is the unauthorized touching of the plaintiff's person. In a civil suit, the patient would have to show two elements. Medical treatment could be unauthorized because the doctor didn’t fully explain either the procedure or the risks associated with the procedure. First, the patient must show that the doctor performed the treatment or procedure without her informed consent. Second, the patient has to show that had she known about the risks of the procedure, she would’ve decided not to have it done and, therefore, avoided the injury.
Find Out if You Have a Valid Malpractice Claim
Second-guessing a doctor’s behavior can be intimidating, especially with complicated legal concepts like informed consent and negligence. If you would like to know if you have a case or just what rights you have, you can have an experienced lawyer review your situation free of charge. That way, you could make an informed decision about your next steps.
Contact a qualified medical malpractice attorney to make sure your rights are protected.