Kelley Uustal Trial Attorney
March 19, 2019

What Is Informed Consent?

Before a surgeon can operate on a patient, that patient (or his or her power of attorney) must give informed consent for the procedure. Informed consent comes from knowing all the most integral information about the operation – its risks, benefits, and alternatives. If a surgeon or doctor fails to obtain a patient’s informed consent, that patient could have grounds for a medical malpractice claim after suffering serious injuries because of the procedure.

What Satisfies the Requirement of Informed Consent?

Most medical malpractice cases that hinge on the theory of informed consent allege that the healthcare practitioner did not fulfill the requirements of informed consent. The surgeon may have explained some of what the procedure entailed, but perhaps missed a critical piece of information – or failed to fully convey the risks of a procedure to the patient. In other cases, the patient may have signed lengthy consent forms, but did not truly understand the risks. A patient has only given informed consent if it ticks all the boxes.

  • The healthcare provider informed the patient of all potential risks and complications that can arise during the procedure – even the minor risks.
  • The patient becomes truly informed about all the risks. He or she has had a chance to ask questions and get answers from a knowledgeable professional.
  • The patient specifically consents to the proposed procedure. The patient understands the risks of the procedure, and has signed consent forms stating he or she knows what to expect.

Most medical procedures involve at least some degree of risk to patients. It is the surgeon’s legal responsibility to make all information about a treatment available to the patient, so he or she can make an informed decision about whether to undergo the procedure. The process of the professional giving essential information to the patient, and the patient signing his/her agreement to have the procedure, is informed consent.

Consent Forms Do Not Always Protect From Liability

Many patients mistakenly believe that they do not have the right to file medical malpractice claims after suffering injuries or losing a loved one in surgery, because the patient signed a consent form. Simply signing a consent form, however, does not bar the surgeon or hospital from liability. Someone signing a consent form is not proof enough that he or she gave informed consent. It is possible that the surgeon did not adequately discuss the potential risks with the patient, or failed to make sure the patient understood the risks.

Signing a consent form does not mean you forfeit your right to file a medical malpractice claim after suffering serious health complications during a medical procedure. It is possible you never actually gave your informed consent to the operation. It is also possible that someone is guilty of an error that caused your injuries, such as negligently nicking an artery or damaging a nerve. A patient may give his or her consent to foreseeable risks, but not to unforeseeable ones such as surgeon negligence.

An informed consent form does not give a surgeon free rein to conduct the procedure however he or she wants, without fear of legal consequences. This would be dangerous for patients. If a surgeon or someone else engages in malpractice that causes the patient’s injury, the patient could file a civil claim – regardless of informed consent. If the patient would not have agreed to the operation had he or she received all critical information about the procedure, the patient could have a case based on lack of informed consent.

Proving lack of informed consent will take identifying the standards by which the healthcare practitioner should have treated your case. Then, you or your lawyer must prove that the defendant failed to fulfill these standards by never getting informed consent, resulting in your injuries or a loved one’s death. Speak to a Fort Lauderdale injury attorney today for more information about your rights as a patient in Florida.

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