Informed consent is a crucial aspect of healthcare, research, and any situation where individuals are asked to agree to participate in a procedure, treatment, or study. It is the process of giving someone all the information they need to make an informed decision about their participation.
Informed consent is a continuous process that involves ongoing communication and ensuring that the individual understands what they are agreeing to. The patient must also be able to freely withdraw their consent at any time without any negative consequences.
The Process of Informed Consent?
Before going into a procedure and any post-op treatment, your doctor must fully inform you about the procedure from start to finish, as well as any potential risks involved. Informed consent follows a general step-by-step process:
- You are told about the risks and benefits of the treatment or procedure
- You are told about the risks and benefits of alternative options
- You have the chance to ask questions and get answers
- You have time to discuss your options with loved ones or medical providers
- You share the decision with your doctor and medical team after taking the time to come to an informed decision
Providing essential information to a patient beforehand and getting the patient’s consent to proceed is required by law. Most medical providers require that patients sign a consent form before any type of procedure or treatment, detailing that the patient has been fully informed of the procedure, including the risks.
However, a signature on a form isn’t enough in a court of law when it comes to proving informed consent. A discussion must be had between the doctor and the patient. As a patient, you should know about the procedure, recovery time, post-op treatment, and any risks or complications associated with the procedure or treatment.
If the doctor proceeds without informing you of the procedure and risks, you may have the grounds to sue your doctor or medical provider for medical malpractice.
What Risks Must Be Disclosed?
While you might think that your doctor should tell you everything you need to know about a procedure from start to finish, a doctor only has to disclose the risks that are most important or pertinent to a patient’s outcome.
But what is deemed important? One risk could be more important to one patient than another in certain cases.
Medical law varies per state, but most states follow the same path for disclosing “important” risks:
First standard: An injured patient suing for medical malpractice must consult with another medical professional to dictate whether or not that medical professional would have informed the patient of the particular risk associated with the malpractice/injury. Was the disclosure worthwhile? Would other competent medical professionals have done the same thing?
Second standard: Would a normal patient have done the same thing if they had been informed of the risk that caused the malpractice/injury? By normal patient, the court will consult with another individual with the same medical history as the plaintiff to inquire whether or not they would have changed their mind about the treatment or procedure if they had been informed of the risk in question.
Would there have been alternative options available to the patient that weren’t disclosed that may have changed their mind? All of this comes into question with the second standard that some states follow.
Is Informed Consent Always Required?
In short, no. It isn’t always required, as there are several exceptions to the rules behind informed consent.
In medical emergencies, for example, a doctor won’t have time to explain the finer details and risks of treatment or a procedure to a patient. If a life-saving measure must be taken in an emergency situation, a patient cannot sue for medical malpractice or a lack of informed consent, even if they wouldn’t have allowed the treatment or procedure to occur in the first place.
This also holds true for patients who are classified as emotionally fragile. For example, suppose a doctor knows that an emotionally distressed patient will refuse treatment or a procedure that could be life-saving but come with risks. In that case, it may be appropriate for the doctor to withhold particular risks from the patient.
However, if this is the case, the doctor must be able to prove that the lack of informed consent or disclosure about the particular risks had a clear reason behind it (i.e. must be able to prove emotional fragility or distress).
Turn to Attorney Steve Newman for Your Medical Malpractice or Personal Injury Case
Licensed to practice law in state and federal courts in both New York and New Jersey, Attorney Steve Newman has represented clients in all 50 states for over three decades and is prepared to represent you in winning your case.
Practicing law in medical malpractice, personal injury, construction litigation, and more, Steve Newman utilizes an extensive network of board-certified physicians to analyze whether medical malpractice occurred.
Contact the Law Offices of Steve Newman today for an attorney committed to you and your claim.
