Informed consent in a healthcare setting allows the patient the opportunity to review and agree to medical treatment. It is the responsibility of the healthcare provider to disclose specific information regarding potential risks and complications related to a proposed treatment to a patient. In the event that a patient receives a treatment without informed consent and is harmed in the process, the possibility of medical malpractice or medical negligence exists. Healthcare providers have an obligation to patients to provide information pertaining to recommended or pending treatments, possible risks, and complications associated with the treatment. Once the patient is apprised of the reasons for the treatment and any risks involved, the patient is considered fully be informed and thus able to give consent with knowledge. In order to know if medical malpractice applies, the different forms of consent need to be understood.
Implied Consent
Implied consent is assumed when a patient verbally agrees or actively and willingly undergoes recommended treatment. For example, cooperating for a test, such as an ultrasound exam, indicates implied consent because the patient willingly opted to have the test done. It also applies in certain emergency situations involving severe medical issues when the patient is unable to verbalize consent. If family members cannot be located to speak on behalf of an unconscious person, consent is implied and the treatment is administered to the patient.
Express Written Consent
A patient’s signature on this document indicates the explicit understanding of the pending treatment and consent that the patient be treated according to the specifics on the document. Any possible risk and potential complications must be disclosed to the patient along with the intended outcome of treatment. Express written consent is required to be signed before surgical procedures can proceed. The patient is given the opportunity to ask the healthcare provider questions before signing the document to ensure informed consent.
What Constitutes Medical Malpractice?
When the express written consent document lacks certain important details or otherwise fails to represent medical intent or potential consequences related to undergoing the treatment, and harm was sustained as a result of the treatment, the circumstances may qualify as medical malpractice.
Examples of situations that involve the violation of consent include:
- Performing a non-emergency procedure not indicated on the consent form
- Performing a procedure on an area of the body not agreed upon in the consent form
- Incongruous information from the doctor and the written contents of the consent form
- Failure to disclose a potential complication
- Minimization of the possibility of a potential complication
Taking Legal Action
If a patient’s rights to informed consent are violated and the administered treatment caused patient injury, the patient may have grounds for a medical malpractice suit. Medical negligence cases can be complicated and difficult to prove. If legal action is warranted, the Gladstein Law Firm has the drive and experience necessary to handle a case of medical malpractice. If the violation of consent caused patient injury, contact the Gladstein Law Firm for a consultation immediately. They are prepared to protect you or your loved one’s right to consent.
