Have you ever been to a doctor’s office or hospital and handed a clipboard of papers, then asked to sign on the dotted line?
We’ve all been there.
Sometimes, these forms allow your medical provider to share your information with an insurance company, or your signature could permit them to share with other providers or your family. Or it could be an informed consent form.
If you’re ill, in pain, or dealing with a serious diagnosis, you might just sign the paper without reading the fine print — and that’s understandable. A lot of it looks like complicated legal and medical jargon, and you probably already know that it’s a procedure you need in order to feel better.
Your doctor or healthcare provider shares information about how the treatment or procedure will work and what the risks and benefits are. This could either be a conversation, written materials (pamphlets, etc.) or links to online content.
Your doctor needs to tell you about the possible risks to the procedure, even the unlikely ones. This should also include risks based on your specific medical history (risks are often greater for some people than others, and this should be addressed). You should be able to weigh those risks against the potential benefits of receiving the procedure. The other alternative is what would happen if you elect not to have the procedure at all.
You should be able to ask questions about any concerns you have, anything you don’t understand, or any part of the treatment process. The doctor or provider should provide detailed answers to your satisfaction. If they don’t know an answer, they should find out and get back to you before beginning the procedure.
Unless time is of the essence (for instance, you’re in the emergency room after an accident and need immediate treatment of an injury), you should have a chance to review the treatment with your family or others who you trust before agreeing to a procedure. You should never feel pressured to make a decision about your medical treatment without the opportunity to explore your options as much as you need to feel comfortable.
The information provided to you is sufficient that you feel comfortable that the decision you’re making is in your own best interest and is the best possible choice.
If you have more than 1 physician involved in your care, you’ve had a chance to review the treatment with each doctor as needed, and your treatment team agrees that it’s the best course of action.
Once you’ve made the decision, you’ll be offered a document — either on paper or electronically — that you must sign to indicate consent. If you decide not to participate in the treatment, you might be asked to sign a document indicating that you refused, against the advice of your physician.
A 1972 lawsuit (Canterbury v. Spence, 409 U.S. 1064 93 S. Ct. 560 34 L. Ed. 2d 518 1972 U.S.) explains precisely what information must be shared with the patient:
For most planned procedures, you need to provide consent unless it’s a basic and routine procedure. For example, taking vital signs or performing non-invasive tests is practically no risk to the patient and wouldn’t warrant consent.
Here are 2 scenarios when a patient is not required to provide consent:
An emergency is when a patient requires immediate treatment in order to prevent death or serious health consequences. If it’s impossible to get consent from either the patient or someone authorized to provide consent on their behalf, the medical team may assume that the patient would want the treatment.
A patient cannot give consent if they are:
In the case of a minor, the parent or guardian would provide consent. If the person is not a minor but has a legal guardian, that person would consent.
Every human body is different, which means the risks for different procedures will vary from person to person. A doctor is not expected to inform the patient about every possible outcome of a treatment. But they should share information about the risks that are important or likely.
In order to file a personal injury lawsuit (which includes medical malpractice), you need to have suffered actual harm or injury. If you weren’t informed of the risks of a procedure, but the procedure was performed and resulted in a positive outcome, you weren’t injured.
To file a lawsuit for failure to provide informed consent, you need to prove:
A doctor doesn’t need to warn of every possible risk. The court would look at whether the risk was significant and likely, and whether a competent doctor would have warned of it.
The court might evaluate whether:
Perhaps you provided informed consent for a doctor to perform an appendectomy. But, when the doctor begins the surgical procedure, she discovers a small tumor on your Meckel's diverticulum, which is attached to the small intestine near the appendix. Since she’s already performing an appendectomy, she decides to remove the tumor so that it can be biopsied to find out if it’s cancerous.
You did not consent to the removal of the tumor because the tumor was not detected until the appendectomy was underway.
The only way a lack of informed consent would lead to a medical malpractice claim in this scenario is if the additional procedure was a mistake.
For instance, this could happen if the doctor began to perform an appendectomy and then thought your spleen was inflamed. Maybe the doctor decided on the spot to remove your spleen but then it turned out that it had been unnecessary. Now you must live without a spleen (which you can, but there will be health effects as a result).
Generally, informed consent isn’t a “standalone” lawsuit. It accompanies a claim for medical malpractice, usually for wrongful diagnosis or treatment.
The Canterbury case set forth a set of standards that a medical professional should follow:
If you believe that your illness or injury was caused by medical malpractice, it’s important to seek the advice of a lawyer. A medical malpractice claim is very complex and whether or not you provided informed consent could be one small part of the larger picture.
If your medical professional is responsible for one of these issues, you might have a malpractice claim: