What Is Informed Consent? What Duties Do Physicians Have Informing Patients About Risks And Potential Complications?

Law Blog

Informed consent is vitally important in medicine, both legally and ethically. Ethically, patients should have full domain over their bodies — they should be allowed to decline procedures if they believe the risks are too great, even if declining treatment would lead to death. Legally, in most cases, physicians must obtain the informed consent of patients before treating them.

Unfortunately, some physicians will fail to seek true informed consent from patients before performing medical procedures — sadly, they may have financial interest in treating you and worry that you would decline treatment if the risks were fully known. To help you understand more about this subject and whether or not you may be able to take legal action against a treating physician, read on to see how informed consent relates to medical malpractice law.

What Is Informed Consent?

Most medical procedures carry risks along with them. Surgery, for example, commonly has a high risk of complications arising as a result of the surgery. Physicians have a duty to disclose all of the potential risks of a medical procedure so that you're able to make an informed decision about whether or not to agree to treatment. Physicians should also inform you of the option to decline treatment and its likely outcome.

In general, legal action for lack of informed consent is warranted whenever physicians fail to disclose potential complications or understate how likely complications will be as a result of performing the procedure. Not everything needs to be disclosed, however. Only complications that are considered statistically significant need to be disclosed — a physician does not need to inform you about extremely rare complications that are very unlikely to occur. Additionally, as part of legal action, you will have to prove that you would have decided against treatment had the risks been fully disclosed to you.

Physicians also have a duty to explain the risks of a procedure in language that you can understand — they cannot gloss over risks using medical jargon that would be incomprehensible to the average patient. However, you also have a duty to ask the physician to clarify risks before you sign a consent form.

Are There Any Situations in Which Informed Consent Does Not Apply?

Physicians don't need to obtain consent from patients in emergencies or if you're non-responsive. Seeking informed consent from patients who need emergency procedures performed on them could cause life-threatening delays.

Can You Still Sue for Medical Malpractice if You Signed a Consent Form?

If you sign a consent form and were mentally competent at the time, it's generally understood that you comprehended the risks of the procedure and agreed to go ahead with treatment. However, not every consent form is correct — much like a physician, a consent form may ignore or misstate the likelihood of complications arising from the procedure.

If You Think a Physician Performed a Procedure Without Your Consent, What Should You Do Next?

If you feel that the risks of a medical procedure were not fully disclosed to you and you would have declined treatment had you known them, speak to a medical malpractice attorney. Find a medical malpractice law firm that has experience handling cases involving a lack of informed consent — you will need to bring your medical records with you along with a copy of any consent forms that you signed before the procedure.


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