Many people believe that informed consent means that the doctor tells the patient all the available and pertinent information and then has the patient sign a form stating that they have heard and understood the facts and agree to the recommended procedure. What this generic description fails to explain is that informed consent really requires a conversation between the doctor and patient, specifically open communication that enables a patient to really understand the risks and benefits of a type of treatment, giving them the chance to ask any and all questions and get clear and detailed answers.
If you believe a medical professional failed to tell you the risks of a procedure and it resulted in harm to your child, please call Stern Law, PLLC today at (800) 462-5772 for a free review of your case and discussion about the tools and knowledge we can provide your family to empower you to fight for your child’s rights.
What Does Informed Consent Involve?
Here are some of the things that should generally be discussed:
- The patient’s diagnosis, if there are complications surrounding the pregnancy and delivery.
- The purpose of the procedure or treatment.
- The benefits and risks that are likely with the procedure or treatment.
- Alternatives to the proposed procedure or treatment, even if these alternatives may be expensive and not covered by the patient’s insurance.
- The benefits and risks of the alternative procedure or treatment.
- The benefits and risks of not undergoing any procedure or treatment at all.
Despite the fact that there needs to be a communication between the doctor and patient, this does not mean that every possible scenario and risk, no matter how unlikely or remote, needs to be discussed.
Do I Have a Case?
Depending on the circumstances, a provider who doesn’t give a patient sufficient information to provide informed consent and the patient subsequently suffers harm during treatment could be liable for medical malpractice.
Here are a couple of things to consider:
- Would another doctor have disclosed the information – In states that follow the physician rule, the standard that becomes relevant is would another competent doctor acting reasonably and in accordance with the custom of physicians have disclosed the information. The analysis looks at whether the likelihood of occurrence was statistically significant enough to make disclosure worthwhile.
- Would a typical patient have made a different decision if she knew about the risk – In those states following the patient rule, courts look at whether another patient with the same medical history and condition would have made a different treatment decision if the information had been disclosed. States following the patient rule require that the doctor disclose any alternative treatment options, even if the doctor does not use the alternatives, and assist the patient in obtaining the alternative treatment from a qualified source if the patient chooses that option.
The elements of a claim involving breach of disclosure are threefold:
- The physician failed to disclose all the information relevant and pertinent to the procedure or treatment.
- If provided with all of the relevant and pertinent information, the patient would have declined the procedure or treatment or chosen an alternative option.
- The procedure or treatment caused the patient’s injuries, even though the procedure or treatment was executed in a competent and skilled manner.
There are times when disclosure is not required. This includes instances of verifiable emergency where the patient is not capable of consenting (unconscious or otherwise incapacitated) and the benefit of the treatment outweighs any risks. The court will excuse a lack of disclosure under one other condition where the emotional state of the patient is so overwrought that the disclosure would cause psychological trauma to the individual.
If you wish to learn more about your legal options, Stern Law, PLLC is ready to provide assistance. Please call (800) 462-5772 today for free to discuss the details of your case.