Fact-Checked: Why Trust Rittgers Rittgers & Nakajima Many are left with the impression that they are unable to bring forth a claim for medical malpractice following an injury because they consented to the treatment or the procedure which caused their harm. However, signing an informed consent waiver before undergoing medical treatment may mean a patient has been made aware of possible risks and benefits associated with a procedure or treatment, but it does not automatically dissipate one’s opportunity to seek recourse through a lawsuit if malpractice occurs.
What Is Informed Consent?
Informed consent is a formal conversion between a healthcare provider and their patient, in which permission is given to a healthcare provider by the patient following a formal, in-depth discussion of the treatment proposed including what the treatment is and what it’s supposed to do, the possible risks associated, and alternative courses of treatment. A conversation regarding informed consent between a patient and their healthcare provider is required by law, as well as by the medical code of ethics.
When Is Informed Consent Required?
A healthcare provider is required to have a discussion about informed consent with their patient anytime the course of treatment they have proposed entails a chance of significant risk to the patient, when surgical procedures are involved, or when a patient has begun participating in a clinical trial. By providing informed consent, a patient affirms they have received comprehensive information about the proposed treatment plan and have been given the opportunity to ask questions and voice any concerns with their healthcare provider.
How Can I Sue For Medical Malpractice After Signing An Informed Consent Waiver?
Informed consent is not equivalent to a complete waiver of liability for healthcare providers. Medical malpractice and informed consent are distinct entities separate from one another. Informed consent deals with the adequacy of a patient’s agreement to undergo treatment based on the understanding of the information provided to them by a healthcare provider. In contrast, medical malpractice is concerned with the standard of care provided by the healthcare provider.
Every adverse outcome a patient may experience as a result of a procedure or treatment does not necessarily mean that medical malpractice has occurred on behalf of the healthcare provider or institution. To succeed on a claim for medical malpractice a patient must prove that the healthcare provider or its institution breached the adequate standard of care, and as a result of that breach they were the direct and proximate cause of the patient’s harm. If both of those requirements are demonstrated, a patient retains their right to pursue legal action against the provider and their institution, even if the patient has signed an informed consent waiver.
When May I Bring Suit For Medical Malpractice?
If you believe that your illness or injury was caused by medical malpractice, it is important to seek the advice of a lawyer as medical malpractice cases are complex and can be confusing. However, a patient may have a claim for a medical malpractice suit if:
Informed Consent Was Not Properly Given Or Obtained
if a healthcare provider failed to disclose important information regarding treatment, or had the patient sign the consent form before providing adequate explanation of the risks and outcomes associated with the procedure or treatment, the consent may be invalid.
Negligence Occurred During The Procedure or Treatment
Consent forms, if adequately explained, cover known risks to a procedure or treatment option, but do NOT cover negligence during a procedure or treatment. If a patient suffers harm as a result of a provider’s negligence such as providing improper medication dosages, surgical errors, failure to diagnosis, or fail to adhere to proper protocols are all instances which may provide the patient with a claim.
Provider Performs a Different Procedure or Treatment than Agreed To
If a provider performs a different procedure or course of treatment than what was consented to by the patient originally then the provider lacked informed consent, and a patient may bring forth a claim of medical malpractice. Just because a procedure or treatment was successful does not release a healthcare provider from their duty to obtain consent.
Provider’s Care Falls Below the Standard of Care
If the healthcare provider’s actions during a procedure or treatment fall below the appropriate standard of care for the community then their actions may give rise to a patient’s claim for medical malpractice. The standard of care for a healthcare provider is determined by what a reasonably competent provider in a similar situation would have done.
If you or a loved one has suffered harm and believe it may be due to a healthcare provider’s negligence, don’t let a signed consent form prevent you from seeking justice. Contact us for a consultation at 513-496-0134 or by email to discuss your potential claim and understand your rights.