ERNST & YOUNG
Going to a healthcare facility can cause people to feel stressed. Especially when there is a lot they do not know. Various procedures and treatment plans contain plenty of information on the positive effects and potential risks. A doctor has a duty to inform patients of these details. Unfortunately, many medical professionals fail to gain informed consent from patients. As a result, a person can get injured by a complication they were not aware of before a procedure.
Understanding Informed Consent
Informed consent is clear communication between you and a healthcare professional. You and them discuss and agree on treatment, care, and services. As a patient, you have the right to ask questions and obtain the necessary information before a procedure.
Often, patients will sign a consent form to indicate they received all the information regarding treatment options. The consent form shows you and your healthcare provider had open communication. And you had the chance to ask questions.
Information can include:
- The name of the condition
- The name of the recommended procedure or treatment
- The risk and benefits of the procedure
- Alternative options, including no treatment
Patients can change their minds after starting the treatment. Make sure to alert the doctor of your decision.
Common Mistakes in Acquiring Informed Consent
Using Non-Standard Forms
A common mistake is a healthcare provider using non-standard forms, which may contain confusing language. Forms go through the review of legal and compliance teams to ensure protection for medical facilities and the patient. Healthcare providers may tailor these forms to list the risks, benefits, and other information.
However, some physicians will modify the language in a way that leads to liability risk. The changed words and phrases may cause the patient to misinterpret the information. They may not fully understand the common risks or serious complications.
As a result, hospitals or practices may not obtain valid informed consent.
Failing to Collect a Signature
Another lapse in obtaining informed consent is the failure to get the written, witnessed consent from a patient. When preparing for treatment, a physician must oversee multiple details to avoid legal trouble. A way a doctor shows there was communication between them and the patient is with a form. The form needs to have the person’s signature, witnessed by someone else and dated. If dealing with a non-native English speaker, the paperwork should either be in their language or signed by a translator. If the person experiences injury and there was no signature, they could claim they were not fully aware of possible issues.
The Patient is Not of Sound Mind
Sometimes, a patient may be sedated, under the influence of a substance, or in a state of psychosis. If this situation occurs, any consent they may give is not valid. Under the law, patients need to be of sound mind to make medical decisions that will affect their bodies.
If someone is in an altered state, they will not fully comprehend what a healthcare professional is telling them. When the patient becomes of sound mind, they may not have much recollection of previous events.
Failing to Communicate in a Neutral Setting
Healthcare providers need to have an informed consent discussion with patients in a neutral setting. Obtaining consent should never occur right before a procedure. The signature will be invalid because the person can claim they signed under duress. When under duress, they either experience high levels of stress or feel coerced in some way.
An example is telling a woman in labor about the possibility of birth abnormalities if she does not sign off on a Cesarean birth.
How to Know if You Did Not Give Informed Consent
When determining if you did not give informed consent, consider the complications that resulted in an injury or loss. If the doctor or form failed to list a specific risk as a potential one, then you may make a claim.
There may be a lack of informed consent if the condition occurs more commonly than your healthcare provider made it appear. A question to ask yourself is if the doctor used layman’s terms or if their explanations differed from those of the form.
Keep in mind there are exceptions that do not require informed consent. They are:
- Emergencies. Doctors do not have enough time to convey the risks and benefits of a procedure to patients.
- Emotionally fragile patients. While consent is invalid when a patient is not of sound mind, certain cases may not need informed consent. If the doctor knows the patient is too distressed to accept critical treatment, then they are not required to obtain consent.
The Next Step
To make a successful claim, the person needs to prove they experienced harm due to not knowing certain risks. If your loved one suffered an injury or loss, the next step is to get a lawyer involved.
Clients can file a medical malpractice lawsuit to seek compensation. They may get reimbursed for pain and suffering, lost earnings, and future medical bills depending on the severity of the complications they face.
When proving the lack of informed consent, there are ways to determine if the doctor withheld important details. An attorney will hire a medical expert to affirm that other competent healthcare professionals would have informed the patient of those risks.
Another standard when proving your claim is if a reasonable patient would have changed their mind. A lawyer looks for someone with the same conditions and medical history as their client. Then, they would ask the second patient if they would have made a different decision if they had been disclosed of the risk. Maryland will consider the question of informed consent from the view of a reasonable patient.
Get a Lawyer You Can Trust
If someone you know experienced an injury due to a lack of informed consent, Weltchek Mallahan & Weltchek is here to help. Our lawyers will work hard to ensure your loved one gets the justice they deserve. If you believe you have a case, contact us today.
Who Can You Trust with Your Case?
Have you or a loved one been injured due to negligence? We want to help. Don’t hesitate to contact us if you believe you have a case; time is an important factor. Interested in learning more? Get in touch with us so we can better evaluate and serve your needs in getting the justice your loved one deserves. You may very well be entitled to compensation.
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