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Medical Malpractice: Informed Consent
Doctors have an obligation to make their patients aware of any uncertainties that can happen during a procedure they undergo, or a treatment that they receive. This is known as ‘informed consent’. Without an informed consent, the doctor cannot go on with a procedure, but if they do and the patient gets injured, then the patient will be allowed to file a medical malpractice claim against the doctor.
Listed below will be what makes up an informed consent, when does it have to be applied, and if there are any exceptions to the rule.
Defining Informed Consent
There are always risks associated with procedures and treatments. The MD is legally responsible to tell the patient of these risks that can happen and let them decide if they want to continue with the procedure or treatment. This is where the informed consent takes place.
Most of the time, a patient has to sign a paper of these known risks, but just because they signed the paper, it does not mean that an informed consent took place. There has to be a face-to-face discussion about the potential risks, and an understanding from the patient’s part.
Determining if there was an informed consent is vital in a medical malpractice claim. If the patient was unaware of the risks and if told about them would have not proceeded with the procedure, then those involved can be held accountable.
What Must Be Told to the Patient
Only the most important risks must be addressed to the patient, not everything that could happen. But this is where the question “what is important?” takes on many meanings. To determine what is important or not, one of the two questions are used in every state:
1) Would these risk have been addressed by another doctor?
A medical expert must determine whether another doctor would have told the patient of the potential risk. The defendant will hire their own expert and testify how another doctor would not have told the patient of the potential risk. The main point of the argument is that is statistically addressing the risk was worth it or not.
2) Would another patient have decided differently if made aware of the risks?
A patient with the same exact medical conditions and history is asked the question if they would have changed their mind to go along with the procedure or treatment if the doctor were to have addressed the risk. Under this standard, the doctor has to notify the patient of alternative treatments. The advice of a medical expert is not usually required here unless it becomes a complicated situation.
There are some instances where a medical practitioner does not need informed consent. These usually involve cases that involve emergency or when a patient is emotionally instable. Sometimes doctors may have to perform a different procedure from the one for which the original consent was received. Medical cases are complex and thus varying situations at times may require different set of rules to be applied.
Medical malpractice laws are complex and have many rules that are different for each state. Most of the times you will require the services of a highly skilled litigator that knows about medical malpractice claims. Percy Martinez Law Firm has managed many medical malpractice claims against hospitals, employees and doctors. If you have suffered an injury while being treated by a medical practitioner, their negligence cannot go undone.
Percy Martinez is an experienced Miami personal injury lawyer with over 20 years fighting cases. You can speak with one of our skilled medical malpractice attorneys that will assess your case. Pick up and dial (305)529-0001 today.