Kelley Uustal Trial Attorney
May 21, 2019

Who Else Can Give Medical Consent Besides the Patient?

Informed medical consent is every patient’s right according to the law. Informed consent means a physician has explained the procedure in enough detail to reasonably allow the patient to give his or her consent based on its potential risks and benefits. If a patient does not give his or her informed consent, performing the procedure could constitute medical malpractice. However, some exceptions exist which allow someone other than the patient to give medical consent.

Your Rights as a Patient

Florida Statutes Section 766.103 gives the legal definition of informed consent in the state. The Florida Medical Consent Law states that the physician must have obeyed the accepted standards of care among members of a similar medical profession in obtaining informed consent. In other words, the physician must have acted with reasonable care according to the circumstances.

The law defines informed consent as consent given after receiving enough information so that a reasonable individual would have a general understanding of the procedure, alternatives, and the risks or hazards associated with the procedure. Giving informed consent means that a person who is mentally and physically competent under all surrounding circumstances provides a valid signature signing off on the procedure.

Failure to receive informed consent prior to a procedure is a breach of duty in the medical industry that could lead to a medical malpractice case. Note, however, that the language of the law states that either the patient or another person authorized to give consent for the patient can provide consent. Certain people other than you may have the right to give informed consent on your behalf.

What About Minors?

Minors cannot legally make medical decisions for themselves (except in cases of emancipation). Instead, a parent or legal guardian is legally responsible for hearing the information about the procedure, making an informed decision, and granting or denying consent. This does not mean the child has no say in the matter. Many medical facilities require the assent of a child who is old enough to decide for him or herself before entering the child into a research study, even if the parents give informed consent. The same rules apply for an adult who cannot make decisions him/herself due to mental incompetence.

If emotional or mental issues get in the way of a patient understanding the procedure and providing consent, it is a physician’s responsibility to convey the information in a way the patient can understand. If this is not possible, another person may then provide informed consent on behalf of the patient. Designating this person takes setting up a power of attorney (POA). A durable power of attorney for health care is a person with the authority to make medical decisions on behalf of someone else. Other words for this individual include agent, proxy, and surrogate.

Assigning a health care power of attorney takes signing a document agreeing to designate a family member, lawyer, or someone else to be your representative if you are unable to make informed decisions or communicate your desires regarding health care. If you have not assigned a power of attorney yourself, the courts may do so for you. A court-appointed proxy is someone a judge picks to make medical decisions for you. A doctor, hospital, friend, a family member may ask the court to appoint such a person for you.

Contact Kelley | Uustal

If a physician failed to give you enough details about a procedure to give you a reasonable understanding of how it works, its risks, and medically accepted alternatives, you could have a medical malpractice claim. A medical malpractice lawyer can help you work through the complex details of your case in pursuit of fair compensation. Contact Kelley | Uustal today to discuss your case during a free consultation.

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