Informed Consent

Informed consent in a medical context is part of the law of medical malpractice, a sub-specialty of tort or personal injury law.

The issue of whether a patient has given his or her informed consent arises when medical care or treatment is rendered. It essentially requires that the patient make a knowing decision about whether to have a procedure or treatment done after the health provider has given all the information that a reasonable and prudent practitioner would provide about the procedure.

The information to be disclosed must include all the possible risks, dangers and consequences involved, such as side effects from medication, infections, anesthesia risks, alternative procedures and the consequences if the procedure is not performed.

Issues on whether informed consent was validly obtained is an aspect of medical malpractice law that requires an experienced personal injury attorney to investigate.

Ensuring Valid Implied consent

In order to ensure valid implied consent the following conditions must be met:

The patient must be competent--legally and mentally--to provide consent.

The consent must be to a specific procedure. The practitioner should not go beyond the scope of the consent.

The health provider should disclose risks--usual and unusual--benefits, alternatives and the purpose of the procedure and the risks if the procedure or treatment is not rendered.

There must be no coercion by the health provider.

The patient should be given a reasonable time to give consent and to ask questions.

The medical provider should be fully informed of the patient’s medical history before obtaining informed consent as the patient’s history may present additional risks from the procedure.

Express and Implied Consent

Express consent is usually given in writing but can be verbally given. Written express consent should contain the names of the persons who discussed the procedure, the name of the health provider, and the date, time and location of where the consent was signed.

Implied consent can be given based upon the circumstances of the procedure. In an emergency where the patient is unconscious or in great pain, the patient is deemed to have impliedly consented to life-saving measures.

The same can occur during surgery where the patient will have given implied consent to whatever procedure may not have been included in the original consent if it was necessary to safely complete the operation or to save the patient’s life.

Another implied consent situation may be where the patient is mentally incompetent or where a communicable disease necessitates the patient submitting to a test or procedure to protect others.

Examples of Lack of Informed Consent

Where a new procedure is offered, the patient must be informed about whether it was FDA approved, has been tested, the short and long-term risks, if known.

Medications--If the medication is recently approved, do researchers know all the possible risks and side-effects? Does the patient’s history suggest other risks? What is the risk of death from using it?

The patient was talked into the procedure with subtle coercion as the health provider had a financial interest in performing the procedure, prescribing the medication, or using a particular implant device.

The patient was not given enough information that a reasonably prudent physician or health provider would have disclosed.

Safer alternatives were not disclosed along with the advantage and disadvantages of using them.

Consequences of Invalid Informed Consent

If the medical or health provider failed to obtain informed consent, or to disclose enough information for a patient to make a reasoned decision, and the patient sustains an injury that was a risk that should have been disclosed, then the provider may have committed medical malpractice.

Damages for medical malpractice may include medical expenses, future medical expenses, loss of earnings, loss of future earning capacity, and pain and suffering. If there was a fatality, the family may also recover damages for loss of consortium.

Informed consent issues are complex and require the experience of a skilled personal injury lawyer who understands the complexities of medical malpractice cases. If you suspect lack of implied consent or a health provider’s failure to disclose all the risks and consequences of a procedure or treatment, then consult a personal injury lawyer immediately as your legal right to file a claim must be done within a limited time.

If you or someone you love feels that they did not give informed consent to a medical procedure, we want to hear your story. Our experienced accident attorneys will review the facts and assist you with your case from beginning to end. We know how to investigate and aggressively pursue medical malpractice cases and we will fight for your rights.


Contact the Law Offices of Stephen S. Weinstein, P.C.
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