Every operation carries an element of risk, even when the procedure is considered routine. Because of this, doctors require patients to sign a consent form before surgery.
The consent form limits your legal right to sue for surgical complications causing injury, but it does not necessarily prevent you from having a valid medical malpractice claim.
Understanding Informed Consent
Informed consent refers to the understanding that patients have the right to make educated decisions about the medical care they receive. While they can rely on the doctor's training and expertise, they still have the freedom to decide what care is best suited for their needs.
All surgeries carry the risk of complications such as infection. These complications can occur even when the surgeon does everything correctly. It is up to you to decide if the benefits of the surgery outweigh the potential risks.
Before you have surgery, you'll be asked to sign a consent form. Signing a consent form indicates:
- You know what procedure you are having the surgeon perform.
- You were told of the possible risks associated with the surgery.
- Your doctor discussed any available alternative treatments or procedures.
- You had a chance to ask questions before the surgery.
When the patient is a child, the parent gives consent. Informed consent is not required for emergency procedures, regardless of the patient's age.
When You May Have a Malpractice Claim
Signing a consent form does not give your surgeon total freedom from litigation. You may still have a medical malpractice claim if the surgeon failed to meet the medical standard of care for your condition.
Some examples of errors that could constitute a valid medical malpractice case include:
- You were the victim of a wrong site, wrong procedure, or wrong patient surgery.
- You suffered complications from a retained surgical sponge or surgical instrument.
- The surgeon punctured a nerve or organ.
- An improper incision nicked or cut an artery.
- The surgery was performed incorrectly due to the surgeon's lack of training or experience.
You may also be able to proceed with a malpractice case if the consent form was not worded properly. As a legal document, the form must contain specific information and phrasing to be considered valid.
Elements Necessary to Prove a Medical Malpractice Claim
You must be able to establish four key elements to win any medical malpractice case, including one that involves surgical errors:
- The existence of a doctor-patient relationship
- A deviation from the standard of care that constitutes negligence
- Injuries resulting from the negligent care
- Specific financial damages resulting from the injuries
Malpractice claims rely heavily on the testimony of expert witnesses who are professionals with education and experience in a specific area related to your case. These include surgeons who can talk about the accepted standard of care for your condition, as well as experts who can quantify your future financial needs as they relate to the injuries you've suffered.
The majority of medical malpractice claims are eventually settled out of court, with compensation based on negotiations between the malpractice insurer and your attorney.
Your settlement will include compensation for:
- Medical expenses related to treating any injuries caused by surgical errors
- Anticipated future medical needs, if you've been left permanently disabled
- Lost wages, if you had to miss work due to extra time in the hospital or a lengthy recovery process
- Loss of future earning potential, if applicable
- Pain and suffering, which includes both physical pain and emotional trauma
Malpractice cases are often accepted on a contingency fee basis, which means your attorney agrees to accept a percentage of the final settlement as a fee for his legal services instead of requiring upfront payment. You'll need to consider the contingency fee when deciding if a settlement is adequate for your needs.
How Neblett, Beard & Arsenault Can Help
Neblett, Beard & Arsenault has extensive experience assisting Louisiana residents in obtaining malpractice compensation related to surgical errors. Our attorneys can advocate for your interests throughout the settlement process, leaving you free to focus on recovering from your injuries. Call today to schedule a free, no-obligation case review.