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Informed Consent

Educating the Patient About Medical Procedures

informedconsentMedical malpractice cases are concerned with whether a medical professional was negligent, or careless, in providing medical care. A medical professional may also be liable for failing to obtain a patient’s informed consent. However, the damages a patient may recover in this kind of medical liability action are different from the damages that might be obtained in a medical malpractice negligence action.

The law of medical malpractice initially grew out of the intentional tort of battery, an unlawful, non-consensual touching. If a doctor failed to get the patient’s consent to treatment, the treatment was regarded as a battery. This view of malpractice evolved into the theory of informed consent. Under the concept of informed consent, the doctor must not only get the patient’s consent to treatment, but also the treatment must be obtained from a fully informed patient. Because the medical liability theory involves the concept of a lack of consent to a procedure, a patient may be able to recover damages even if the medical procedure was successful. In a lawsuit for negligence, the patient must be able to show that the treatment was in some way harmful. A medical malpractice attorney can advise you on your rights and if they have been violated.

At a minimum, informed consent usually means that the patient has been informed of:

  • the nature of the treatment or procedure that will be performed any alternatives to that treatment or procedure
  • the risks of the procedure
  • the risks of failure to undergo the procedure

Informed consent is especially important in cases involving experimental treatments.

The patient gives actual consent to a treatment, either orally or in writing. Sometimes doctors provide extensive and elaborate consent forms for patients to sign. There are some cases where consent is implied such as:

  • from conduct indicating a willingness to undergo the treatment
  • when an unconscious patient is unable to consent, and there is no family member available to give consent to treatment

It is usually necessary for a parent or guardian to consent to the treatment of a child, unless treatment is required in an emergency situation and the parent or guardian is unavailable to give consent. Exceptions apply to situations where a minor seeks treatment for:

  • a sexually transmitted disease
  • alcohol or drug problems

Abortion is another procedure to which a person under the age of 18 may be able to give consent, but many states have enacted statutes requiring parental consent to an abortion.

Sometimes a patient may not wish to accept treatment, or particular kinds of treatment. If the patient is conscious and competent, the patient can refuse. Patients may refuse particular kinds of treatment such as a blood transfusion for religious reasons.

Patients with a terminal illness may wish to refuse life-extending but painful treatment.

If the patient is unconscious and a family member asserts the patient’s wish to refuse certain treatment, difficult issues are presented which may require a court proceeding to resolve. Many states have responded to these difficulties with legislation giving effect to living wills or advanced health care directives. These documents may give express instruction to health care providers, or give a family member or other person authority to consent to, or refuse, treatment on behalf of the patient. A medical malpractice attorney in Tampa, Florida should know the laws specific to your situation.