What are the Requirements for Informed Consent for Doctors and Health Care Providers?
In the course of treatment, physicians and healthcare providers must clearly inform patients of any diagnosis made, the possible courses of treatment available, the benefits and risks of any proposed procedures, and the risks of not undertaking any treatment or undergoing any procedures. The reason for these requirements is that all patients should be fully informed about their medical condition, and when treatment or procedures are proposed, patients need to be in the position to make a fully-informed decision about their care.
Physicians who fail to provide such information may be liable, even if treatment is successful, if they did not to provide the necessary information for you to provide informed consent.
How is Consent Obtained?
Consent can be provided verbally, or through a written consent form. In situations in which a patient’s life is at stake and where the patient may be unconscious or otherwise unable to provide consent, consent is typically not required for medical treatment that is necessary. Consent for minors is usually obtained by a parent or guardian providing consent to treatment. Consent can also be implied when a patient allows a procedure to be performed.
In hospital and other settings, patients are normally required to sign a consent form prior to any significant procedures being rendered, such as surgery. In these forms, patients are advised of the risks of the procedures, which might include complications such as infection. By signing such a form, patients may be giving up their right to sue if certain disclosed outcomes do, in fact, result.
However, these forms do not relieve providers of their obligations to perform procedures in accordance with sound medical care. So, for instance, any proposed “consent” that seeks to relieve doctors of actions relating to negligence, malpractice, or similar matters will likely be unenforcable, even if it is clear in the consent form. By having surgery or other procedures undertaken, we assume certain risks that are inherent in the procedure itself which cannot be eliminated; we do not assume the risk of physician malpractice.
Damages When Informed Consent is Not Provided
When informed consent is not provided, the damages need to be determined based upon the injuries that are directly suffered. For example, if a patient underwent a painful medical procedure but the physician failed to inform the patient that he or she would likely be just as well off without having the procedure, the damages may be based upon the pain, suffering, medical costs, lost wages, and other damages associated with the having the procedure performed. In this situation, assuming that it can be shown the the patient would not have had such procedure performed had this information been disclosed, the patient would be entitled to recover even though the procedure itself was successful.
How We Help
In a lack of informed consent case, it is critical to understand the communication between a doctor and patient. This will include not only verbal statements, but also communications such waivers and other documents that may have been signed, and any notes made by the doctor or other healthcare providers.
Once we learn about the communications and events that transpired, we can advise you as to the legal basis of any claims that you might have, and how we may be able to help.
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