How does informed consent affect a medical malpractice claim?

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Since certain types of medical care carry the risk of serious side effects, healthcare providers are often required to obtain informed consent before proceeding with a treatment plan. If consent is not obtained and the patient suffers harm as a result, the doctor can be held liable for medical malpractice.

What Is Informed Consent?

Medical MalpracticeBefore a patient begins treatment for a serious illness such as cancer, his healthcare providers are required to obtain informed consent. This means, the patient must agree to the treatment after receiving all of the information necessary to make an educated decision.

The process of obtaining informed consent requires the following multiple steps:

  1. The doctor tells the patient about the risks and benefits of the treatment. He may also suggest websites or provide pamphlets the patient can use to learn more about the proposed course of treatment.
  2. The doctor explains the risks and benefits of alternative treatments, as well as the option of receiving no medical treatment at all.
  3. The doctor answers any questions the patient has.
  4. The patient discusses the treatment options with family, friends, or other trusted advisors.
  5. The patient shares his decision with the doctor and signs a form authorizing treatment to begin or a form indicating that the treatment is being refused.

A doctor can't simply ask the patient to sign a consent form without going through the other steps of this process. Without providing all of the information, the patient's consent is not valid.

If you've determined that you do not wish to receive the treatment that your healthcare provider recommends, you may be asked to sign an informed refusal reform. Your signature on this document indicates that you've considered the risks and benefits of the treatment and have opted not to follow your provider's medical advice.

When Is Informed Consent Not Required?

Informed consent is not required in every circumstance, including:

  • If it’s an emergency situation. For example, if medical professionals are treating life-threatening injuries sustained in an auto accident, informed consent is not required.  Emergency room care providers are expected to do whatever their training suggests is necessary to save the patient.
  • If the patient is emotionally fragile. Doctors can provide vague information about risks to patients who are considered so emotionally fragile that they would likely refuse needed treatment. However, the doctor must be able to demonstrate a clear reason for not disclosing the risks.
  • If a second medical problem is found. If a patient has already agreed to a surgical procedure and the doctor finds a second problem that can be fixed during the course of the first operation, informed consent is not required for the additional procedure.

When a Patient Cannot Give Consent

If the patient is unable to give consent because he is physically and/or mentally incapacitated, someone must give consent on his behalf. In most cases, this is a spouse or other family member. However, court-appointed guardians may also be used to provide consent for treatment.

Children under the age of 18 are not allowed to give consent for treatment, even in the case of a teen who fully understands the risks and benefits of a procedure. A parent or legal guardian must provide consent on his behalf.

How Does This Relate to Medical Malpractice?

A doctor can be sued for medical malpractice if informed consent is not obtained when required, and the patient would not have agreed to the treatment if he had been fully aware of the risk. However, patients can only sue for the malpractice if they suffered actual harm due to the doctor's conduct. This means you have no malpractice case if your doctor failed to obtain informed consent for a surgery that carried the risk of paralysis or nerve damage unless you experienced one or both of these complications.

If you have a claim for medical malpractice, you can seek damages for the cost of medical care related to the doctor's conduct, any applicable lost wages, and pain and suffering associated with your injuries. Neblett, Beard & Arsenault is dedicated to helping Louisiana residents who've been harmed by a healthcare provider's negligence receive the compensation they need to move forward with their lives. Contact us online or call 318.541.8188 to schedule a free, no-obligation case review.


Richard J. Arsenault
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Recognized by several legal associations, Richard Arsenault has vast experience in complex litigation cases.