Weston Informed Consent Attorney
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For every medical procedure, there is some degree of risk. Even if you are told to take a mild painkiller, there is always the chance of having an adverse reaction to the drug. Informed consent is a doctor's duty to tell their patients all of the potential risks involved with a medical procedure, no matter how slight or severe they may be, before accepting their consent to said procedure. This is known as obtaining informed consent, and it is a serious medical malpractice violation if a doctor acts without it.
Why is Informed Consent Important?
Medical treatments and pharmaceutical drugs are complex in nature, and the details regarding them can be pages long. Your doctor does not need to tell you about every minute aspect of your treatment if it is unimportant or something that should be known without notification. For instance, the patient should know that receiving an incision during surgery will cause bleeding.
Would a Reasonable Person Understand?
Under Florida law, informed consent can only be given if a reasonable person would have a general understanding of the procedure or treatment, its substantial risks, and any alternatives from the information provided by a medical professional. This emphasizes the point that doctors have an obligation to ascertain their patients’ actual understanding.
A medical professional who verbally recites the consent form isn’t doing enough if his or her patient signs while still feeling confused about what the treatment is or if it’s even necessary. If the patient lacks the capacity to understand what is being told to them – perhaps because of a developmental disorder or mental illness – informed consent can’t be acquired from them.
There are two widely-accepted guidelines for doctors to follow regarding informed consent:
- Other medical professionals: Is the risk in question something that most other medical professionals would disclose to the patient? If it can be found that the general medical populace would have told a patient of the risk and your doctor did not, medical malpractice has occurred out of negligence and incompetence. Your attorney may be able to use expert witnesses to help support your claim.
- Patient's influence: Would a reasonable patient allow the risk in question to influence their decision? If the answer is yes, it must be disclosed as part of informed consent. Additionally, if the risk is found to be influencing enough to change a patient's mind, at least one alternative solution must be offered.
In addition to what needs to be disclosed to you before medical treatment is given, informed consent rules require that the information is given to you in a clear, concise manner. Most courts will only consider a one-on-one discussion with your doctor as receiving informed consent; being given a lengthy sheet listing all the potential risks is not considered clear enough to constitute informed consent.
More Than a Signature on a Consent Form
Informed consent is more than your signature indicating that you understand and agree to a treatment or procedure. Many people incorrectly believe that a doctor is automatically protected against a malpractice lawsuit because the patient signed an informed consent form, which is not the case.
In Florida, informed consent requires that the patient be advised of the following:
- The nature of the procedure or treatment
- Substantial risks and hazards of the procedure or treatment
- Reasonable alternatives to the procedure or treatment (including doing nothing, if appropriate)
Your doctor simply handing you a form and telling you to read and sign is likely not enough to obtain your informed consent. You may not fully understand what you’re reading, which is entirely possible with that strange mix of medical and legal jargon on the page.
Also, your informed consent very likely can’t be given if the doctor fails to ascertain your understanding or avoids questions you have about the medical treatment or procedure. The point here is that a discussion needs to take place between you and the doctor where the procedure or treatment and its risks or alternatives are explained to you.
Can a Medical Procedure be Performed Without Consent?
Receiving informed consent is not always mandatory. In rare circumstances, it can be foregone to protect the patient's health. Informed consent is not required most frequently in emergency situations where lifesaving procedures must be done or the patient will pass away.
Treatments that will help an emotionally unstable patient can also be performed without direct informed consent, as it may be assumed that the patient cannot make or would choose not to make the right decision due to their current mental state.
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