Medical Malpractice Results when a Doctor Fails to get Informed Consent

There are many different ways that a doctor can commit medical malpractice, including wrong site surgery, leaving a foreign object inside the patient, and prescribing the wrong medication, among many other errors.  However, one of the ways in which a doctor can commit malpractice is by failing to get the patient’s informed consent to the medical procedure or treatment.

Informed consent means that the patient’s doctor or other medical provider must explain the benefits of the potential surgery, procedure, or other treatment, as well as potential risks, and possible alternatives to the suggested course of action.  In addition to explaining everything to the patient, the doctor must obtain a written document signed by the patient, which acknowledges that he or she understands the explanation and consents to the action being taken.  When explaining potential alternatives, the doctor does not have to explain every possible option, merely the ones that a reasonable physician with the same knowledge and training would consider practical alternatives.

The idea of needing to obtain informed consent arose out of the principle that a person has the right to determine who makes contact with his or her body.  Therefore, a physician must explain the proposed proceeding in a manner that the patient can make a reasoned choice about whether or not to undergo the treatment or surgery.

When a doctor discusses the proceeding with the patient, he should explain the following:

• The nature of the patient’s diagnosis;
• The purpose of the proposed treatment, surgery, or procedure as well as the likely outcome of the medical action;
• The risks and benefits of the procedure;
• Reasonable therapeutic alternatives to the proposed treatment, which should include proposals that other doctors with the same knowledge and training would consider regardless of cost or insurance coverage;
• The risks and benefits of any reasonable alternative treatments, surgeries, or other procedures; and
• The potential outcome if the patient chooses not to pursue the recommended treatment or any reasonable alternatives.

It is very important that the doctor convey this information to the patient in a manner that he or she can understand.  As part of the informed consent discussion, there will be a form that contains a lot of the information discussed and which requires the patient, or the patient’s legal guardian, to sign at the end of the explanation.  The doctor should make a reasonable effort to answer the patient’s questions before the form is signed.  A copy of this form should be provided to the patient and placed in the patient’s file.

There are circumstances where implied consent, which is in contrast to the express consent of a written form, may be sufficient for the purpose of performing a procedure.  This specifically includes those instances where a patient presents him or herself for a non-invasive procedure or for activities that are necessary steps in the course of treatment to which a patient did consent.  Informed consent may not be necessary in an emergency situation where there is not sufficient time or the ability to explain the options to the patient.

A failure to obtain informed consent is a part of many medical malpractice actions.  In order to succeed in this type of claim, it is necessary to prove that the doctor did not explain the procedure or reasonable alternatives, that the patient was harmed during the recommended treatment or surgery, and that the patient would have chosen another option if he was aware of all the facts.  The skilled and compassionate Memphis medical malpractice attorneys at Bailey & Greer, PLLC understand the nuances of medical malpractice law and can discuss what happened to you and what legal options are available.  To schedule an appointment, please call 901-680-9777.  At Bailey & Greer, PLLC, we are small enough to care, big enough to fight, and experienced enough to win.