The vast majority of medical malpractice lawsuits end in verdicts in favor of the doctor or hospital. To win a medical malpractice lawsuit, you must prove that your doctor breached the standard of care, not simply that you got sicker after the doctor treated you. Especially with emergency medicine, some doctors find themselves in no-win situations; the patient’s condition is already fragile, and the doctor must make a decision quickly, with only limited opportunities to find out details of the patient’s medical history. As the circumstances allow, the doctor should inform the patient about the risks of treatment before beginning the treatment, and the patient should give his or her consent to the treatment despite the risks. If the patient is too young or too sick to give consent, a person legally responsible for making medical decisions on the patient’s behalf should give that consent.
What is Informed Consent, and How do You Measure it?
Any decision the doctor makes, no matter how prudent, carries a substantial risk of adverse outcomes. The standard of care dictates that, whenever possible, the doctor should make the patient aware of the risks, as well as the benefits, of a medical procedure before they perform it or a drug before they prescribe it, and the patient should affirm that he or she understands the risks and still wants to undergo the procedure or take the medicine. This is informed consent. If a doctor performs a risky procedure or prescribes a drug with dangerous side effects without obtaining informed consent, and the patient suffers an adverse outcome, this is a breach of the standard of care, and the patient may have a claim against the doctor for medical malpractice.
In many types of medical treatments, including most surgeries scheduled in advance and virtually all elective medical procedures, doctors require patients to read informed consent forms and sign them before undergoing treatment. The informed consent form becomes part of the patient’s medical records. The best informed consent forms include detailed information about the treatment, the reasons for performing it, the risks, and the alternatives, all in language that people who are not doctors can easily understand. When there is no time to sign a form, sometimes the patient gives verbal consent after the doctor explains the treatment that he or she is about to perform.
Of course, social interactions, including those between doctors and patients, contain ample room for ambiguity. With verbal consent, and especially with nonverbal consent, there are plenty of gray areas. Did the patient actually say “yes” or just nod his head? Maybe the patient said “yes,” but her body language showed that she was scared and apprehensive. Matters of informed consent are even more complicated when they involve patients from a cultural background in which it is not socially acceptable to question doctors’ judgment.
The Practice of Medicine Before Informed Consent
Informed consent is one of the things that sets modern medicine apart. Before the 19th century, doctors did not seek informed consent from their patients. From ancient times until around the time that viruses, bacteria, and antibiotics were discovered, physicians followed a standard of care in which they always promised a cure, even if the prognosis was poor. They believed that it was in the patient’s best interest to believe that he could be restored to health, even when there was little chance of that happening. Patients and their families did not see this as negligence or blame the doctors for giving them false hope.
Informed consent is about more than just adapting the practice of medicine to the information age; today, the general population knows more about medicine than in the past because of the high literacy rate in the United States and because it is possible to research one’s medical condition and its treatments on the internet. Informed consent is also about protecting physicians and hospitals against legal liability; it is much harder for a patient to claim that he did not know about the risks of a medical procedure if he signed a consent form before undergoing the procedure.
Informed Consent & the Pediatric Patient
Children do not have the legal authority to make medical decisions on their behalf. Before treating a pediatric patient, the physician must obtain informed consent from the parents. Some complexities arise if the children’s parents are divorced; not every parenting plan assigns decision-making authority about non-emergency medical care the same way. Some require explicit consent from both parents before the physician can perform the treatment. Therefore, if your parenting plan says that both parents must give consent, and the doctor operates on your minor child based on a consent form signed by your ex-spouse but not by you, you may have grounds for a medical malpractice lawsuit.
Informed Consent & Medical Malpractice
Performing a medical procedure that carries more than a minimal risk without first obtaining informed consent from the patient or his or her legal guardian is a breach of the standard of care. Even if you signed the consent form, you might still have a case against the doctor if any of the following cases apply:
- The doctor or an employee of the hospital pressured you to sign the form, and you signed but did not feel comfortable doing so
- You received the form very shortly before the treatment and did not have time to read it carefully before signing
- The form was only available in English, and the patient does not read English well; no version of the form was available in the patient’s language, and there was no interpreter to explain the content of the form to the patient
Filing a Medical Malpractice Case? Our Medical Malpractice Attorneys Can Help.
If you or a loved one has experienced medical malpractice in Kansas City you should speak with an experienced medical malpractice attorney as soon as possible. Contact us online or call our Kansas City office directly at 816.249.2101 to schedule your free consultation.