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Understanding Informed Consent and How It Impacts Your Medical Malpractice Case

| Category: Medical Malpractice | June 30, 2023

Prior to receiving treatment, you may recall having a conversation with your physician about the potential risks and side effects associated with the procedure. You may also recall signing some paperwork. Altogether, this is referred to as obtaining your “informed consent”  – you were provided with enough information to make an informed decision in consenting to the treatment. Unfortunately, patients go through this process at a time when they may be feeling incredibly overwhelmed. They may not have really understood what they were being told or knew what questions to ask. Many patients do not even remember it. If you have suffered harm as a result of a medical procedure, a medical malpractice attorney can discuss how informed consent can impact your case. 

Informed Consent Explained

It is important to understand that your doctor must obtain your informed consent before performing any significant medical procedure. This includes things such as surgery, anesthesia, vaccinations, advanced medical testing, vaccinations, or cancer treatment. It is medical malpractice if they fail to obtain your informed consent and you are subsequently injured. 

When recommending medical treatment, Maryland law requires that doctors explain the following to their patients:  

  1. The nature of any material risks inherent in the proposed treatment; 
  2. The likelihood of success; 
  3. The frequency that the inherent risks are encountered; and
  4. What alternatives are available.   

These disclosures may be made verbally or in writing. Once this information has been given to the patient and they consent to the treatment, the doctor is considered to have obtained the patient’s “informed consent.” One of the ways that a medical malpractice lawyer can help is by reviewing your case to determine whether you were given sufficient information upon which to make an informed decision. 

Informed Consent Must Be Meaningful

Patients trust their doctors and are therefore inclined to follow their recommendations. However, doctors cannot rely on this trust alone and must provide the necessary information even if the patient has already agreed to undergo the procedure. 

As part of the informed consent process, doctors must be mindful of the patient’s ability to understand the information they are providing. Doctors cannot obtain their patient’s consent after burying them in hyper-technical medical terminology that they cannot understand. Instead, they must deliver the information in a manner the patient can understand and allow time for questions.  

Broad, Generic Disclosures Are Insufficient

While the law does not require the patient’s consent to be given in writing, most medical professionals will have their patients sign a form document that effectively says they have been given adequate information and consent to the recommended treatment. However, broad, generic disclosures are generally not considered sufficient for obtaining informed consent. To be effective, the form must include the disclosures specific to the patient’s illness and the recommended treatment. 

How Do You Determine What Is a “Material” Risk?

In this context, a material risk is one that is significant. In other words, doctors are not required to disclose insignificant or immaterial risks or side effects. The problem is that people may disagree over what risks are significant and what risks are not. 

Many states will determine whether a risk is material from the perspective of the physician. Thankfully, Maryland uses a patient-based standard: a risk is deemed material if a reasonable patient would have chosen not to undergo the recommended treatment if they had been made aware of that risk. 

If you suffered due to an undisclosed risk or side effect, a medical malpractice attorney can help you get fair compensation to cover your additional medical expenses and other losses. 

Informed Consent Does Not Bar Medical Malpractice Claims

Informed consent protects doctors, hospitals, and other healthcare providers only from claims where the patient suffered harm from a risk or side effect that was disclosed. It does not protect healthcare providers from harm caused by their negligence such as the following: 

  • Birth injuries
  • Surgical errors
  • Failure to diagnose or delayed diagnosis
  • Medication errors
  • Post-surgery infection
  • Anesthesia errors

To prevail, you must be able to prove that the harm you suffered was caused by the healthcare provider’s failure to provide treatment consistent with the established standard of care. Whether or not you gave informed consent is irrelevant. 

Talk to Medical Malpractice Attorney Thomas E. Pyles Today

Informed consent is a complex topic in a complex area of the law. If you have questions about the treatment you received and whether you have a medical malpractice claim, we can provide the answers you need. Contact us today at 301-705-5006 to schedule a free consultation.