If you were injured as the result of a medical procedure or medication, the concept of informed consent will likely arise in any claim for your injuries that you bring against a medical professional. In many situations where medical care or treatment is provided to an individual, medical professionals are required to obtain the patient’s “informed consent.” Although the specific definition of informed consent may vary from state to state, it means essentially that a physician (or other medical provider) must advise a patient of all of the potential benefits, risks, and alternatives involved in any surgical procedure, medical procedure, or other course of treatment, and must obtain the patient’s written consent to proceed. If you or your loved one has suffered catastrophic injuries as the result of a medical procedure or medication, consult an attorney to learn your rights to compensation.
The concept of informed consent is based on the principle that a patient has the right to prevent unauthorized contact with his or her body and, thus, a physician has a duty to disclose information to the patient so that he or she can make a reasoned decision regarding treatment, based on an understanding of the treatment to be provided. In many situations, the failure to obtain informed consent is a form of medical negligence, and may even give rise to a cause of action for battery. In certain situations, informed consent is an absolute necessity. For example, in any medical trials or experiments that receive federal funding, informed consent must be obtained from any human participant or subject.
The Role of the Physician
Physicians themselves, rather than a representative, nurse, or other related health care professional, are the best choice to speak to patients about informed consent. In discussing the matter with a patient, the physician should cover:
- The patient’s diagnosis, if it is known;
- The nature and purpose of the proposed treatment or procedure, as well as the procedure’s likelihood of success;
- The benefits and risks of the proposed treatment or procedure;
- The alternatives to the proposed treatment or procedure;
- Alternatives to the treatment or procedure should be discussed regardless of their cost and regardless of whether they will likely be covered by the patient’s health insurance;
- The risks and benefits of an alternative treatment or procedure;
- The risks and benefits of not receiving or undergoing any treatment or procedure.
A physician should also ensure that patients understand what they’re hearing. In fact, some hospitals now require physicians to participate in courses on communication skills. The patient, or the patient’s legally authorized representative consenting to the treatment on the patient’s behalf, must sign and date the informed consent documents, and must be given a copy of the informed consent documents once they are signed and dated. A copy of those documents should also be placed in the patient’s file.
The Role of the Patient
Although a physician is required to inform a patient about benefits, risks, and alternative treatments, patients must also play a part in the informed consent process. Patients must listen to the physician and should ask questions of the physician if they do not understand, or if they would like more detailed information.
Types of Consent: Express and Implied
Informed consent may be either “express” or “implied.” Express consent is given in writing or verbally. If a patient’s consent is written, it should include the name of the health care professional who discussed the proposed treatment with the patient, the name of the health care provider who is to perform the procedure, and the date, time and location where the consent form was signed.
Implied consent is consent that is not given by a patient in writing or verbally, but understood from the circumstances surrounding the procedure or treatment at issue. Consent may be implied when, for instance, a patient presents him or herself for a relatively simple, non-invasive procedure. Consent is also usually implied for necessary procedures a surgeon might perform in the course of a surgical procedure to which the patient did consent.
Situations in Which Informed Consent May not be Necessary or May be Implied
- Situations Not Involving Medical Procedures or Treatment. Not all situations require that informed consent be given. For example, although listening to a heartbeat through a stethoscope may be considered a “treatment” or “procedure,” to some people (especially those who are uncomfortable in physician’s offices), it’s rare that a physician and patient would have a lengthy discussion about the benefits and risks of listening to a heartbeat using that device.
- Emergency Situations: In emergency situations, there is not always time to obtain a patient’s informed consent, or the patient may be unconscious and unable to communicate. If an emergency involves risk to the patient’s life or the patient is unable to communicate, consent may be implied under the rationale that the patient would have consented to emergency treatment.
Obtaining Consent from Incompetent Individuals and Minors
When a competent adult seeks medical treatment, the process of obtaining informed consent may seem relatively easy. However, in situations where mentally disabled individuals or children need treatment, the ability to obtain informed consent becomes more difficult. In these situations, serious questions arise concerning who is able to give informed consent for those individuals.
In most cases, a mentally disabled person has an appointed guardian authorized to make medical decisions and give informed consent for that individual. Medical providers need to make sure that when they obtain informed consent for incompetent individuals, they have obtained it from the correct person or persons.
In most situations, parents can give informed consent for treatment for their minor children. However, some states allow young adults under eighteen to play a more active role in their medical care and treatment, including the process of informed consent. Not every teenager is capable, however, of making informed consent decisions under these laws. Instead, most states focus on “mature minors” sufficiently ready to understand the nature and consequences of treatment. In those states, such young adults may be able to provide consent without consulting with their parents. For example, some states have passed specific laws that allow for minors to consent, without parental knowledge or approval, to health care treatments related to substance abuse, mental health, and sexual activity.
At the Law Offices of Vincent J. Ciecka, P.C. we handle malpractice associated cases. If you have a situation where you or someone you know might be a victim of this type of injury due to the negligence of someone else, please contact us as soon as possible at (856) 665-5709 to discuss your specifics and help you determine if indeed you have a case so you can obtain due compensation for such injuries.
MEDICAL MALPRACTICE FAQs
Q: What is Medical Malpractice?
A: Medical malpractice occurs when a physician fails to provide appropriate healthcare according to established medical standards and, as a result of that failure, causes injury to the patient that otherwise would not have occurred. A physician can make a medical mistake by doing something that should not be done, or by failing to do something that should be done. Malpractice is negligence, or unreasonable conduct, by a professional, such as a doctor, a nurse, an engineer, a lawyer or an accountant. A jury may be capable of determining whether someone has acted reasonably on matters that are within most people’s common knowledge, for example, when someone is driving or maintaining property. However, juries cannot be expected to know what doctors or engineers, for example, should do. In most malpractice lawsuits, expert witnesses must give opinions as to what the professional should have done, and a jury applies what they have learned from these experts to the facts of the case to determine whether the expert has acted reasonably.
Q: How can you determine if a doctor, hospital or other healthcare provider has committed medical malpractice?
A: The determination of medical malpractice requires a thorough evaluation of all the medical records by physicians, nurses or other healthcare providers of similar background and training as the doctors whose treatment is being reviewed. The experts must determine that the doctors and other providers failed to provide care according to accepted standards of medicine or surgery. Medical expert testimony is required to both prove errors on the part of the physician and the additional injuries caused by the error that would not have occurred had care been provided appropriately.
Q: How do you know if you have a medical malpractice case?
A: In order for you to know if you have a medical malpractice claim, you need to have the assistance of experienced medical malpractice attorneys to evaluate both the legal and medical aspects of your potential claim. The attorney must determine whether the injury, or the discovery of the injury, is sufficiently recent in time that it is not barred by the Statute of Limitations defense. Next, the attorney must obtain all relevant medical records, organize them and analyze them to see if the medical facts support the claim. If the medical facts appear to support the claim, the attorney must select knowledgeable and articulate experts, who are willing to review the potential case, give an honest opinion on the physician’s conduct and are willing to testify at Trial in support of your claim. Only after your attorney has obtained the necessary expert testimony to support claims of medical negligence and the relationship of that negligence to your injuries, do you know that you have a case.
Q: How long do you have to bring a medical malpractice lawsuit?
A: The period time within which an injured patient can bring a medical malpractice lawsuit is called the Statute of Limitations. The Statute of Limitations for bringing a medical malpractice lawsuit and the special rules that apply vary from state to state and the type of defendant.
Q: If you signed a waiver or consent form, have you waived your rights?
A: All medical treatment must be provided with the patient’s informed consent, except in extraordinary emergency situations. Patients sign a general consent form for treatment upon admission to a hospital and a specific consent form prior to having an invasive procedure or operation performed upon them. The specific consent form for a procedure or operation must be signed by the patient indicating that the doctor has explained the nature of the patient’s problem, the suggested treatment as well as alternative treatments, the risks attendant to those various treatments and that the patient has had an opportunity to ask questions before consenting to the recommended treatment. Signing a consent form does not waive a patient’s right to bring a medical malpractice claim if the doctor fails to provide medical care in accordance with accepted medical practice.
Q: What is Lack of Informed Consent?
A: Lack of Informed Consent occurs when the patient develops an injury during a medical procedure or operation that is a risk recognized by the medical community but undisclosed to the patient of the procedure and, had the patient been advised of that risk beforehand, the patient would have not consented to the treatment that was performed but would have chosen one of the alternatives. In most states, the determination as to whether a patient would have chosen the alternative treatment if the undisclosed risk was known is determined by the jury based on what the jury feels a reasonable patient would have done if the withheld information had been given to the patient.
Q: Can anything be recovered if medical malpractice causes a patient to die?
A: Yes. This is called a Wrongful Death action. Wrongful Death actions are often brought in connection with medical malpractice claims, when the patient dies as a result of the medical negligence.
Q: What steps does an experienced medical malpractice attorney take to properly and fairly evaluate a potential case?
A: An experienced medical malpractice attorney first takes a detailed history from the client to learn all of the medical treatment the individual has received, so that the necessary medical records can be obtained. Next, assuming that the medical malpractice attorney believes that there is a case to pursue, all of the relevant medical records must be obtained from the providers. After obtaining the records, the records are organized according to provider and are analyzed by the attorney or by an experienced Legal Nurse Consultant and/or physician working with that attorney. Based on a medical review of the records, the attorney must make a determination as to what expert medical witnesses are needed to prove plaintiff’s case. Once that is determined, the records are forwarded to those medical expert witnesses, who charge a fee for review of the records. Upon receipt of a positive opinion from a medical expert witness that the defendant or defendants deviated from accepted standards of care and thereby were medically negligent AND the receipt of a medical expert witness’s testimony that the medical negligence caused injury which otherwise would not have occurred, then the attorney knows that there is a viable medical malpractice claim.
Q: What should you bring to the first meeting?
If your case is a medical malpractice case, you should bring with you any and all medical records that you have as well, as a list of all physicians and hospitals that you have visited over the course of last ten years. You should also bring any x-rays or other imaging films in your possession, as well as any photographs that you may have which would be evidence of your injuries. If your matter is an automobile negligence case, you should also bring a copy of your automobile insurance policy and declaration form. The declaration form is the page of your automobile insurance policy that provides the limits of your coverage. In addition, you should bring a copy of the police report from your accident and any photographs of the vehicles involved. If your case involves a product-related injury, please bring all of your medical records, photographs related to your injuries, any documents related to the investigation of your injury and any available photographs of the product as well as any product information you may have at your disposal.
Q: How does an attorney find experts to help with your case?
A: Experienced medical malpractice attorneys identify their experts through a number of different sources. These experts include accomplished certified experts in medicine and science that can address cases involving claims of medical malpractice negligence and defective products. Experienced medical malpractice attorneys know numerous and very qualified experts who can provide an unbiased review and analysis for a variety of different claims.
Q: Where can you get information about your doctor?
A: You can obtain information about your doctor from the State Board of Medical Examiners or your state’s equivalent certifying agency. Other sources of information about your doctor may be available on the Internet. You can also frequently obtain information from the medical society of your state and the hospital where your doctor practices. One website that provides hospital and physician ratings is www.healthgrades.com.
Q: How can you find out if your doctor has had any medical malpractice claims?
A: Unfortunately, unless your doctor has been the subject of discipline by your states licensing board, it is often not possible to determine the nature or the number of medical malpractice claims he or she has had, except in the midst of a lawsuit. Some states, such as Massachusetts, have created an on-line database, accessible to the public, with medical malpractice information. Others have not done so yet. . For a list of addresses and phone numbers of State Medical and Dental Boards from whom you obtain information about disciplinary actions taken against doctors in your state, please see National Practitioner Data Bank List of State Medical and Dental Boards.
Q: Will your time and effort spent in pursuing a medical malpractice claim be worth it?
A: Experienced medical malpractice attorneys usually work together with in-house medical personnel and independent medical reviewers, so as to screen-out those cases that are not likely to result in proofs of a departure from standard medical practice. If an experienced malpractice attorney is prepared to undertake your representation, it is generally a case that the attorney believes is worth your time and effort. The cost of bringing a medical malpractice case requires that resources be spent on medical malpractice cases with a likelihood of success and significant amount financial recovery.
Q: Is there a limit on how much a person can recover for a malpractice claim?
A: Some states have caps on damages that a plaintiff can receive for pain and suffering; thankfully, many states do not. To this end, attorneys who represent injured patients remain vigilant in protecting their right to recover for medical negligence from unwarranted economic limitations.
Q: Will you be offered a settlement?
A: While a number of the cases handled by experienced malpractice attorneys result in a settlement, medical malpractice actions are much less frequently the subject of settlements than other types of personal injury cases. One of the main reasons for the lower settlement rate for medical malpractice claims in many states is that the defendant-physician must agree and consent to any settlement.
Q: How are the attorney fees paid?
A: Most malpractice attorneys offer to represent clients in personal injury matters, including medical malpractice, on a contingency fee basis. A contingency fee basis is one in which the attorney’s fee is contingent upon a successful outcome, via jury verdict or settlement. The attorney receives a percentage of our client’s successful award as the attorney’s fee. In many states, the state legislature and courts determine contingency fee percentages. However, the disbursements and/or funds needed to investigate and pursue these cases are the obligation of the client. In certain matters, a client may request and an attorney may provide representation in a medical malpractice action on a fee for service basis or hourly rate.
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