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| 11271 Ventura Blvd. |
| Suite 473 |
| Studio City, CA 91604 |
| Phone: 877-479-7970 |
| Fax: 888-509-8864 |
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| Warner Center Towers |
| Phone: 877-479-7970 |
| Fax: 888-509-8864 |
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| Watt Plaza |
| Phone: 877-479-7970 |
| Fax: 888-509-8864 |
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| Fashion Island |
| Phone: 877-479-7970 |
| Fax: 888-509-8864 |
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Informed Consent and Medical Malpractice
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In many situations where medical care or treatment is provided to an individual, medical professionals are required to obtain "informed consent" from the patient. 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 written consent from the patinet in order to proceed. If you were injured as the result of a medical procedure or medication, you may be facing whether that questions of whether you gave informed consent.
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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.
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The Medical Professional
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In discussing informed consent with a patient, a medical professional, many time the physician, should cover:
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- [The patient diagnosis, if it is known;]
- [The nature and purpose of the proposed treatment or procedure, as well as the likelihood of success of the procedure;]
- [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 health insurance;]
- [The risks and benefits of an alternative treatment or procedure; and]
- [The risks and benefits of not receiving or undergoing any treatment or procedure.]
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Medical institutions generally have form and release forms that require a patient, or their representative, to sign that they understand what they are hearing and what they are consenting to.
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The Patient
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Although the medical institution is required provide the informed consent, the patient has a role in the process also. Patients have the responsibility of listening to the medical professional attempting to elicit the informed consent and asking questions if they do not understand, or if they would like more detailed information.
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Types of Consent: Express and Implied
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Informed consent may be either "express" or "implied." Express consent is given in writing or verbally. If a patient gives written consent, 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.
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Implied consent is consent that is not expressly given by a patient, 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.
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Where Informed Consent May Not Be Necessary
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- [Not all situations require that informed consent be given. For example, although listening to a heartbeat through a stethoscope may be considered a "procedure", it is 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. If an emergency involves risk to the life of a patient, or the patient is unable to communicate, consent may be implied under the rationale that the patient would have consented to emergency treatment.]
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Consent from Incompetent Individuals and Minors
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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.
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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.
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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.
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Contact us at 877-479-7970, or e-mail us at info@law-thomas.com, to arrange for a confidential complimentary consultation on your personal injury legal needs.
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Q: What kind of compensation may I recover for my injuries?
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A: An injured person may be awarded compensation, or damages, for: Medical expenses; Future medical expenses; Expenses to care for the injured person; Lost income; Loss of income in the future; Pain and suffering; Loss of enjoyment of life; ans/or Loss of consortium, or spousal relations. In some cases, an injured person may be able to collect punitive damages, which are meant to punish a person who acted badly. Punitive damages, if any, would be in addition to the damages listed. If you read reports of verdicts or settlements in catastrophic injury cases, you may be struck by the large amounts of money involved. Remember that this money is meant to pay for many different, and expensive, things: extra medical care, lost wages, pain and suffering. A catastrophic injury can rob a person of their life, and money damages are the legal way of attempting to compensation that individual for their loss.
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