Patients have the right to full and complete informed consent. The lead up to a medical procedure or treatment can be anxiety-inducing, and a lot of people have questions or concerns they want answers to before their procedure or treatment begins. It is a doctor’s responsibility to ensure their patient is informed of the risks connected to their medical procedure or treatment, as well as the alternatives to the medical procedure or treatment. They must also obtain consent to perform these procedures or treatment (unless it is an emergency).
What happens if a doctor performs a procedure or treatment without obtaining informed consent from the patient? It could be an assault and/or battery with criminal exposure and/or it could be negligence and violation od the standards of care.
What Is Informed Consent?
Informed consent is when a patient authorizes and agrees to have a procedure performed or treatment course on them after a doctor effectively communicates the risks, details and alternatives to them. Every state handles informed consent laws differently. In Florida, patients must be advised of the following:
- The reason for the procedure, along with what to expect
- Any risks or hazards associated with the procedure
- Any reasonable alternatives to the procedure, including no medical intervention (if possible)
Anyone undergoing a medical procedure or treatment should also be made aware of who will be performing the procedure or treatment.
Note: Signing a written consent form is not the same as giving informed consent. A signed consent form acts as a piece of evidence that informed consent was given; however, it is not conclusive on its own and could have missing information. Some forms could have been signed while a patient was sedated, by a guardian for example.
Why Informed Consent Is Important
Aside from being required by law, informed consent provides patients with an opportunity to decide whether they are comfortable with the risks associated with a medical procedure or treatment. When a doctor openly and honestly provides a patient with information about the procedure(s) and treatment(s) they may need, it can help foster a trusting doctor-patient relationship.
Informed consent only works when medical professionals give patients enough information and time to reach their own conclusions regarding their medical care.
Is Informed Consent Always Necessary?
While doctors should obtain informed consent whenever possible, there are some exceptions to the requirement. These situations include:
- Emergencies: When someone is in a severe accident or suffers from a life-threatening medical issue such as a heart attack, there may not be ample time to obtain informed consent before executing a life-saving procedure. Patients are unconscious in many emergency situations, leaving them incapable of communicating or providing consent. The rationale often used for performing procedures without consent is that the person would have consented to treatment had they known their life was on the line.
- Risk of physical or emotional harm: Informed consent might not be required if troubling medical information, such as a high risk associated with a procedure or treatment, would cause the patient to suffer from extreme emotional distress or self-inflicted physical harm.
- Testing: When someone is forced to submit to testing against their will, they do not need to be given the opportunity to consent. For example, if someone is being held in a medical facility for mental health issues, testing may be conducted for their safety regardless of consent.
Not All Consent Is the Same
There are two types of consent: implied and express consent.
Implied consent is not provided in writing or through a conversation but is mutually understood due to the circumstances surrounding the treatment. For example, if a patient voluntarily sees a doctor for eye irritation, it’s assumed that they consented to the doctor examining their eyes. Implied consent also applies to life-saving procedures that become necessary over the course of a surgery that the patient did provide consent for.
Express consent is given by the patient verbally or through writing. Written consent should include the name of the doctor who spoke with the patient, the name of the doctor who will be performing the surgery, and the time and location the document was signed.
When Implied Consent Is Not Obtained
If a doctor performs a procedure the patient did not consent to or fails to provide adequate information regarding the risks of the procedure, they may be liable if the patient is injured during the procedure. This happens most often in surgeries, where a patient may not have received detailed information about:
- The risks of anesthesia
- The risk of paralysis in spinal surgeries
- The risk of infection or nerve damage
- The risk of a long-term disability
Doctors can only be held liable for risks that are foreseeable. If a doctor fails to obtain informed consent and a patient is injured during a procedure, the patient may be able to sue for damages such as medical bills, diminished quality of life, and more.
We Can Help You
If you were injured during a medical procedure where your doctor failed to obtain informed consent, reach out to Rash Mueller today. With over 40 years of experience litigating medical malpractice lawsuits, our team is ready to fight on your behalf for the justice and compensation you deserve.
Contact us online or at (954) 914-7116 to schedule a consultation today.