The Role of Informed Consent in Medical Malpractice Cases

Informed consent is a fundamental principle of patient care. It refers to the process by which a patient is provided with information about a proposed medical treatment or procedure – including risks, benefits, and alternatives – and allows them to make an informed decision about whether to proceed.

Informed consent is a legal requirement in Washington DC and across the country, and failure to obtain it from a patient can result in a claim for medical malpractice.

Obtaining informed consent

Generally, requirements for informed consent require that the healthcare provider offer a(n):

• Explanation of the nature and purpose of the treatment or procedure
• Description of the risks and benefits of the treatment or procedure, including potential side effects and complications
• Discussion of any alternative treatments or procedures, and their risks and benefits
• Explanation of the expected outcome of the treatment or procedure
• Discussion of any special instructions or precautions that the patient needs to follow before or after the treatment or procedure

The healthcare provider must also ensure that the patient understands the information provided, and must answer any questions the patient may have. The patient must then provide their voluntary agreement to undergo the treatment or procedure.

Typically, the medical professional who will be performing the procedure is responsible for obtaining informed consent. The consent process must be documented in the patient’s medical record, typically through a written consent form.

It’s important to note that informed consent is an ongoing process, and healthcare providers must continue to provide information and answer questions throughout the course of treatment or procedure. In addition, informed consent is not valid if the patient is not competent to make the decision, or if the patient is coerced or pressured into giving consent.

Common procedures requiring informed consent

Informed consent often comes up in medical malpractice cases, when patients allege they were injured as a result of a medical procedure or treatment. These often involve the following types of cases:

• Surgery. Informed consent is especially important in surgical cases, where the risk of complications or adverse outcomes can be high. Patients must understand the risks and benefits and be allowed to ask questions and express concerns before consenting to the procedure.
• Experimental treatments. Patients who participate in clinical trials or experimental treatments must be fully informed of the nature of the treatment, including risks and benefits, and give voluntary consent to participate.
• Obstetrics and gynecology. Consent is crucial in these types of cases, where patients may be asked to undergo procedures like C-sections, hysterectomies, or sterilization. They must be informed of the risks and benefits, any alternatives, express concerns, and give voluntary consent before proceeding.

Failure to obtain consent can lead to a medical malpractice claim.

Was informed consent properly obtained?

If a patient alleges they did not give informed consent for a medical procedure or treatment, the court will look at a variety of factors to determine whether it was obtained properly. These factors can include things like whether:

• The patient was provided with enough information. The healthcare provider must offer the patient enough information about the treatment or procedure for the patient to make an informed decision. This information should include the risks and benefits, as well as any available alternatives. The level of detail of this information will depend on the complexity of the procedure or treatment, as well as the patient’s medical history and preference.
• The patient understood the information. The healthcare provider must not only offer the information – they must ensure that the patient understands it. This can involve using plain language, educational materials, or visual aids. The provider should also let the patient ask questions and express concerns.
• The patient gave voluntary consent. The patient must also be given the opportunity to refuse the procedure, and not be coerced or pressured into giving consent. Further, the patient must be competent to give consent, meaning they must have the mental capacity to understand the information given to them and make an informed decision based on that information.
• The consent was documented. Informed consent must be documented in the patient’s medical record, including a signed consent form or other documentation.

Even if consent was obtained and documented, if a patient is harmed by a medical provider’s negligent actions, the provider can still be held liable for medical malpractice.

Damages for medical malpractice

If a patient can show they did not give informed consent for a medical procedure or treatment and suffered harm as a result, they are eligible to recover damages in a medical malpractice lawsuit. Available damages can include:

• Medical expenses, past and future
• Lost wages, past and future
• Pain and suffering
• Loss of enjoyment of life

In some cases, the court may award punitive damages if the healthcare provider’s conduct was particularly egregious. These are meant to punish the healthcare provider and deter similar conduct in the future.

It’s important to note that the damages available in a medical malpractice case can vary widely depending on the specific facts of the case and other factors. In addition, medical malpractice cases can be complex and challenging, and it’s important to work with an experienced attorney who can help you navigate the legal process and protect your rights.

If you or someone you love has experienced harm from medical malpractice, talk to an experienced Washington, DC attorney today. It’s important to understand your rights and have someone who can advocate for you from the very first step of the process.

Please contact Paulson & Nace, PLLC through this contact form or by calling our office.