Three Reasons You May Not Win An Informed Consent Medical Malpractice Case

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Before you undergo a medical procedure, the doctor must tell you about the risks associated with the treatment, so you can make an informed decision about whether or not you want to still do it. If a doctor fails to properly inform you of the risks and you are injured as a result, you can sue him or her for medical malpractice based on lack of informed consent. However, not every case will result in a win. Here are three instances when the court may side with the doctor in this type of personal injury case.

Informed Consent is Not Necessary

There are a few instances where informed consent is not required. The first is during life-threatening situations or emergencies, especially when the person is incapacitated. When a patient requires emergency medical care, the doctor is allowed to weigh the benefits and risks of various treatments and perform the ones he or she feels provide the patient with the best of survival/recovery.

This doesn't mean the doctor can behave recklessly or take unnecessary risks (e.g. perform surgery when medication would have sufficed). Typically, the court will consider whether a reasonably skilled and cautious doctor would have taken the same action given similar circumstances. If the answer is yes, then the doctor may escape liability for injuries that may result from emergency treatment.

Informed consent may not be required if the patient is classified as emotionally fragile. A person may be considered emotionally fragile if he or she is in distress or a sick and frail condition and discussing the risks of the procedure would only make the person more distressed or ill with anxiety and possibly lead to the individual refusing life-saving treatment. In these situations, the doctor is allowed to withhold some information about the treatment or be purposefully vague about the risks.

The Risk Was Not Important Enough or Necessary to Disclose

A particular medical procedure or medication could have a page full of risks, both known and unknown, that it would be impractical to disclose them all. Therefore, doctors are given leeway to discuss only the most important or material risks.

There are two standards various courts use to determine if a doctor was obligated to disclose a particular risk. The first standard is whether or not other doctors in the same profession facing the same patient circumstances would have discussed the risk. If the risk is something not normally disclosed in regards to that particular procedure, then the doctor may get a pass from the court.

For example, a patient sued a doctor for not disclosing he didn't have malpractice insurance for the procedure he was performing. However, the Supreme Court ruled against the patient, deciding that doctors didn't have to disclose whether or not they had malpractice insurance because the informed consent requirement only involved medical risks, not financial ones.

The second standard is whether another patient with the same medical needs and under the same conditions would have made a different decision if told about that particular risk. If the answer is no, then the court may rule in the doctor's favor.

The Procedure Was Necessary

Another type of informed consent situation involves doctors performing medical procedures that are different from what the patients consented to. For instance, a surgeon removes growths he or she found on the thigh and calf. However, the patient only consented to having the growth in the thigh removed. The doctor could be sued for a lack of informed consent to the second procedure.

In certain circumstances, though, the doctor may be exempted from liability in this type of situation. If during the course of one treatment, the doctor performed another treatment as a life-saving measure, then he or she may be excused from requiring consent to perform it.

For example, a surgeon is performing brain surgery to remove a growth and discovered a problem with a blood vessel that would cause a fatal medical problem. The doctor could fix the issue without needing to get a separate consent for the procedure from the patient.

As with many medical malpractice cases, wrongdoing is not always clear. It's important to discuss the facts of the incident with a medical malpractice lawyer to determine if you have a viable case before filing a lawsuit to ensure you can collect compensation for your injuries. You can find a lawyer at a firm like Davidson Law Center Inc.