What Is Informed Consent in a Medical Malpractice Case?

Doctor with iPad Patient Chart

In medical malpractice law, informed consent refers to the permission a doctor must get from their patient before starting a medical treatment or procedure. Doctors, nurses, and other medical professionals must acquire a patient’s informed consent before taking action, otherwise they risk liability in a medical malpractice lawsuit.

The Elements of Informed Consent

The two basic elements of informed consent are a patient’s understanding of and agreement to the treatment or procedure suggested by their doctor. Both of these must be achieved for a doctor to have a patient’s informed consent.

Your Doctor Must Have Your Understanding

What your doctor wishes to do should be explained to you as clearly as possible, ideally in the language you understand best. Things that your doctor should explain include the treatment itself, possible side effects or reasonable risks, alternative treatment options and their risks, as well as what could happen if you decide to decline any treatment.

Should you demonstrate a lack of understanding of any of these factors that your doctor should have noticed, they probably don’t have your informed consent to proceed.

You may receive a form to sign that explains these factors, but signing it doesn’t necessarily convey your informed consent. If what’s written it looks like alphabet soup and you don’t really understand it, you should tell your doctor, who must explain it to you in another way to achieve your understanding.

Most of the time, doctors will verbally explain their recommended course of action before giving a patient an informed consent document to sign.

Your Doctor Must Have Your Agreement

Your agreement to undergo a treatment or procedure is equally important to achieve. Your agreement should be a clear affirmation that you wish to proceed with your doctor’s recommended course of action.

You have a right to know about all of reasonable treatment options and you have the right to take time to consider those options. If your doctor should have known that you wanted to hold off on treatment or pursue an alternative option, they could be held liable for medical malpractice for proceeding with the originally proposed treatment or even refusing to give an alternative treatment.

Competency Is Also a Factor

For any patient to give informed consent, they must first have the competency to do so. Generally speaking, an adult who is 18 years old or older is considered competent unless they suffer from certain mental illnesses or impairments.

If someone is considered incompetent because they’re a minor or suffer from a mental illness or impairment, a parent, guardian, or conservator can only approve treatment.

Do You Need to Speak to an Attorney?

If your doctor conducted a procedure or treatment without your informed consent, you may have grounds for a medical malpractice lawsuit. By holding your doctor accountable for their actions, you can recover compensation for medical costs your incurred as well as compensation for any pain and suffering you endured.

Learn more about legal options that may be available to you by scheduling a free consultation when you contact us online.