Patients have the right to decide what happens to their bodies. Doctors have an ethical and legal responsibility to inform their patients about procedures and treatments. The patients have the right to understand and agree to a treatment plan before the doctor performs most actions.
The right to be informed extends to most medical procedures and treatments. However, there are some instances in which consent is implied. The difference between express and implied consent can be important in a medical malpractice case.
What is Express Consent?
Express or informed consent applies in most cases. Generally, a patient gives express consent by signing a medical authorization form. A patient may also provide express consent verbally in some cases.
The doctor must provide specific information before obtaining express consent. The information must be sufficient to allow the patient to make an informed decision about whether to proceed with the treatment or procedure. Information the patient should receive before providing express consent includes:
- The condition or illness which requires treatment
- The name of the proposed procedure or treatment
- A detailed description of the treatment or procedure, including a discussion of the potential benefits and risks
- Description of risks associated with choosing non-treatment
- The anticipated results of having the procedure or treatment
- The possible alternative forms of treatment or the lack of any alternative forms of treatment
- Why the doctor believes this treatment or procedure is the best choice
Surgical procedures, anesthesia use, participation in research studies, and complex treatments that involve risks or side effects usually require express written consent.
A lack of informed consent can be a factor in a medical malpractice case. Therefore, most doctors explain procedures and treatments even if consent may be implied.
What is Implied Consent?
In some medical situations, your consent to a treatment or a procedure is implied. For example, if the doctor tells you that he needs to draw blood and you roll up your sleeve and extend your arm, it is presumed you are giving implied consent.
It is generally assumed when a patient schedules a physical examination, the patient is giving consent to the exam. Extending your arm to get a flu shot or have your blood pressure checked can be other examples of implied consent. The facts and circumstances determine whether the consent was implied.
For instance, you may have consented to a standard physical examination. However, if the doctor performs a procedure that is not common during a standard physical, express consent may be necessary. For example, the doctor determines during the examination that he needs to perform an invasive procedure.
If you believe that a doctor should have asked for your consent before performing a procedure or treatment, contact a medical malpractice lawyer to discuss the specific circumstances under which you received treatment or underwent a procedure.
Exceptions to Express Consent Requirements
Some circumstances result in an exception to the requirement for obtaining express consent. In most cases, implied consent is presumed in an emergency. For example, complications arise during surgery that requires the doctor to perform additional procedures to save the patient’s life.
Doctors may take reasonable and necessary steps to provide emergency medical care even though you might be unconscious. The same applies when the patient is a minor and requires treatment, but a parent is not available to provide consent. Doctors may also provide medical treatment or perform procedures that are authorized by law.
However, doctors cannot decide to perform procedures that are not necessitated by an emergency. For instance, you may have consented to the removal of your gallbladder, but the doctor cannot remove your appendix at the same time unless there is a medical reason to do so right now.
Medical Malpractice Claims Involving Informed Consent
A violation of informed consent may not be enough on its own to support a medical malpractice claim. However, the doctor may be guilty of medical malpractice if you were harmed because of the lack of informed consent.
For example, your doctor did not explain that there was a ten percent chance of blindness if you have eye surgery. After surgery, you were legally blind. You may not have chosen to have surgery if you had known about the risk, which could be the basis of a medical malpractice claim.
Doctors cannot change any of the information. They must also provide all the required information. A patient cannot give informed consent without all of the information necessary to make a decision.
Medical malpractice claims based on consent can be complicated. Many issues must be addressed. There must be a link between your injuries and damages and the lack of informed consent.
A medical malpractice lawyer can review your case and advise you of your legal rights.