Informed Consent and Its Role in Medical Malpractice Claims

Informed Consent and Its Role in Medical Malpractice Claims

What is the process of informed consent? Informed consent is a way of saying that doctors, surgeons, and other healthcare providers must always inform their patients about the risks that are widely associated with a medical procedure before they conduct that procedure. If the patient does not consent to a particular treatment and they are injured at the hands of a healthcare professional, there is a chance that the patient will be able to bring a successful lawsuit against the healthcare professional. 

When Informed Consent Applies 

Yes, it is true that almost all medical procedures come with the risk that something could go wrong, especially in the midst of major surgery. This is why doctors have the responsibility to give their patient information about a specific type of treatment so that the patient can choose whether they should undergo the treatment or not.

This information is typically provided through paperwork. If you are going to receive a surgery or another type of treatment that comes with a wide variety of risks, your doctor or surgeon will typically have you, the patient, sign a consent form that will talk about any risks that could be experienced through this particular procedure, so that you can weigh your options and make a decision. However, this form is not enough in the eyes of the court. The doctor must push this one step further and actually have a physical, one-on-one conversation with the patient to discuss the procedure and risks to the patient so that they are fully aware of what they could be facing. The patient must be able to ask questions and understand that there are risks, especially when the risks could be life-threatening.

A patient can sue and be successful in a lawsuit if they were never told about these risks and are harmed as a result.

Would a Competent Doctor Have Disclosed the Risks?  

One question that the courts ask is this: would a competent doctor under regular circumstances disclose the risks of a procedure before they start? If you have been injured at the hands of a negligent care provider and you were never given informed consent, this is an important question to pose. You might have to invest in the experienced help of an expert witness who will be able to testify on your behalf and show that any other doctor in that position would have made you aware of the risks before the procedure took place. The courts will also consider how serious the risks were and dictate if the disclosure would have been worthwhile and if you would have undergone the surgery or other treatment if you had known.

An Example of Why Informed Consent is Important 

Here is just one example of why informed consent is important: perhaps there is a patient who is going through surgery for the first time. They have never been given anesthesia before, and so they are informed of the risks:

  • Nausea, vomiting, chills, and confusion
  • Postoperative cognitive dysfunction, which can lead to long-term memory and learning problems in certain patients, especially older people who are unable to recover from anesthesia as easily
  • Malignant hyperthermia, which can be a deadly reaction to anesthesia that leads to a quick fever and serious muscle contractions
  • Breathing issues during and after surgery, especially for patients who have obstructive sleep apnea that makes patients stop breathing while they are sleeping

As you can see, many of these scenarios could be injurious and even deadly if a patient undergoes surgery and has not been informed of what could happen to them. This is why it is imperative that a doctor speaks with a patient before surgery and informs them of their options so that they can look into various methods of patient safety in these situations.

When is Informed Consent Not Required for a Patient?  

There are some exceptions and times that informed consent does not apply and a doctor will more than likely not be held liable.

Informed Consent and Its Role in Medical Malpractice ClaimsEmergency Situations: If there is a medical emergency and family cannot be reached, such as in life-or-death scenarios, informed consent is not needed. There will be no time to talk about risks to the patient if the doctor or surgeon is working to save the patient’s life. A patient will likely not be successful in a case if they attempt to bring one when injuries result, as they could have lost their lives without the procedure. 

Anxiety-Related Issues: In certain rare situations, it is possible that a doctor will not require to give informed consent when they believe that a frail patient who absolutely needs a life-saving procedure will deny a procedure just because they are anxious about it. Let’s say that a patient needs to have a life-saving procedure done to remove a brain tumor. If they are anxious about the fact that there is a small chance that paralysis could result, the doctor might not be required to receive consent. A doctor might also be able to choose how much information they should disclose when the procedure could mean life or death.

When a Second Issue Results: This is another rare scenario where informed consent might not apply. What if a surgeon is in the middle of heart surgery and, while conducting the surgery, another health concern is found? If the doctor is able to treat it and save a life, they are permitted to move forward without giving informed consent.

Receiving Help from a New Jersey Medical Malpractice Attorney 

Medical malpractice cases in New Jersey are extremely delicate and emotional cases, which is why it is imperative and essential to have an attorney on your side who understands the ins and outs of these cases and grasps New Jersey laws. If you are in need of a personal injury attorney who can handle your claim from start to finish, please contact us at Brady, Brady & Reilly, where the outcome of your claim is important to us and we care about helping you move forward during this difficult time. Please reach out to us as soon as possible at (201) 997-0030.