Informed Consent

Medical malpractice lawsuits are mostly medical misdiagnosis or surgical errors.  Some of these errors often involve failing to diagnose or treat a medical condition properly.

However, unfortunately some operations or procedures do come with inherent risk. These risk can range from minor to catastrophic. When this is the case, it is vital that the doctor explain these risk FULLY and in depth. This is needed to obtain your informed consent and allow them to do the procedure risk and all. Regrettably, many doctors do not do there job and explain all the risk with their patients in order to gain informed consent. Failure to get informed consent from the patient can be medical malpractice, and the doctor or hospital can be held liable for the damages caused.

Informed Consent, what exactly is it?

Medical malpractice lawsuits regarding lack of informed consent are seen predominantly in elective procedures but are also seen in all types of procedures done in doctors office, hospitals or surgical facilities.

For a patient to make a proper decision on whether to undergo the procedure, have the operation or take the medication, he or she must be told the alternatives to such treatment and the risk/reward of such options. This could include less invasive procedures or surgeries, different medications or maybe the choice of doing nothing.

So when a doctor or health professional discusses with their patients a course of treatment they should be told what the reasonable foreseeable risk and benefits of all choices are. This always should include the option of doing nothing. For example, if a patient has been diagnosed with a slow-growing disease and depending on the patient’s age and underlying conditions, maybe doing nothing is indeed the best course of action, even if this means the doctor or hospital would not get paid for such.

All of us trust our health professionals with our bodies and many of us do not second guess them, but that should not be the case. We should and the law agrees, be told of the risk/reward of all avenues of treatment before we can truly give “informed consent”.

When must a health professionals obtain informed consent?

Best practice is for all doctor’s, health professionals and hospitals to discuss the risks, benefits, and alternatives of any treatment they plan to perform. After the doctor/health professional discuss these risks, the patient must agree, normally in writing, to the procedure before the physician will be able to move forward.

However the few exceptions to this rule like for emergency procedures or when a person cannot give consent for many reasons, consent can begiven by a parent or guardian.

Do I have a medical malpractice case because of no informed consent?

If you can prove the following (AND WE CAN HELP YOU PROVE IT- you’re not alone), you may have a lack of informed consent medical malpractice claim:

• Your doctor/health care professional performed a procedure on you without disclosing the risks involved in the procedure or he didn’t have you sign a release;
• Had you known about the risks and alternatives to the procedure, you would have opted out of the procedure.

When you or a loved one seeks medical treatment from a doctor or hospital, you or a loved one should expect and are entitled to the doctor or hospital providing full disclosure and informing your or a loved one of all the risks and rewards of a particular procedure or course of treatment, as well as the pro’s and con’s of not doing such treatment. This helps to assure that you or a loved one is making an informed decision about the medical treatment at hand.

Unfortunately, many times over a doctor or health professional does not provide full disclosure for which you or a loved one is entitled to.  When a doctor, hospital or health professional does not provide informed consent, this may cause catastrophic harm to you or a loved one. In these circumstances, you may have a medical malpractice claim for “lack of informed consent” under New York law.

New York law characterizes “lack of informed consent” as follows:

• That the doctor, hospital or health professional failed to fully disclose alternative courses of treatment and reasonably foreseeable risks associated with the treatment rendered, as well as the risks associated with all alternative courses of treatment, that a reasonable physician or other medical provider would have disclosed under the same circumstances, and
• that a reasonably prudent patient in the same situation would not have undergone the treatment that was actually provided by the doctor, hospital or health professional had the patient been fully informed of the risks and alternatives, and
• that the failure of the doctor, hospital or health professional was a proximate cause of an injury.

In New York, to have a valid medical malpractice claim for “lack of informed consent” the plaintiff (you) must prove all three of the above. A knowledgeable medical malpractice attorney can help you in proving the above. Our office offers a free 24/7 at consultation with an attorney at 212-888-2686.