Informed Consent

Medical providers, before anything else are healers.  We rely on their skill and technique to improve and cure loved ones in their times of need.  Sometimes this healing process requires a simple order for medication and instructions for rest and relaxation.  Other times a medical provider may need to perform more complicated, invasive, and surgical measures to cure a patient.  While a patient’s decision to proceed with such treatment may be simple and uncomplicated, there are other times in which a particular course of treatment may be a difficult decision, one that a patient will contemplate and debate with loved ones.

Just as it is criminal conduct for another person to physically harm, attack, or assault another human being, medical providers are not permitted to initiate any treatment when, under reasonable circumstances they can first obtain a patient’s consent.  However, more than a mere consent, the law requires that a patient provide informed consent for the specific treatment or procedure.  Informed consent has been found to require that the patient be informed of nature, risks, and alternatives of each such treatment or procedure.  Informed consent therefore requires that the patient possess the necessary mental function and capacity to make such decisions.  For example, and minor or legally incompetent individual may not posses the ability to consent to any such treatment or procedure regardless of how informed they medical provider believes he or she is.

It is also important to recognize that a malpractice case based on the failure to obtain informed consent can arise when consent may be given for a particular procedure, but a medical provider performs a separate or additional procedure beyond what the client consented to.  Often times these claims arise when a patient undergoes an initial procedure and the medical provider decides without permission to perform another type of surgery.  Although the medical provider may “guess” right that the surgery was in the patients best interest, it is nonetheless the basis for a case if the patient never had the opportunity to discuss or explore the effects of such a decision.

A typical informed consent includes the patient being being confronted with: 1) The nature and purpose of the treatment, 2) the risks and benefits of the treatment, 3) alternative to the treatment and risks and benefits of each alternative, 4) the likelihood of serious injury or death, 5) the possible risks associated with refusing the recommended treatment, and 6) an opportunity to discuss the decision with the medical provider.

As is true for any malpractice case, it is necessary to correlate a possible failure to obtain informed consent with a particular damage. For example, if a doctor begins a procedure and, after opening up a patient discovers cancer which the doctor removes successfully, there will likely not be a medical malpractice case unless the plaintiff can show a particular harm that was caused by the doctor’s actions.