Is Lack of Informed Consent Medical Malpractice?

Before performing any type of medical procedure or treatment, doctors must provide the patient with an informed consent form that describes the treatment, risks, and financial responsibilities. Lack of informed consent may result in a medical malpractice lawsuit against the doctor if the patient sustains injuries.

What Is Informed Consent?

Generally, informed consent is the act of agreeing to do something or allowing an action to happen with the full understanding of all the relevant facts, including inherent risks and available alternatives. Informed consent applies to many situations in life, including making important decisions about medical care, legal issues, and different types of contracts.

In the medical field, obtaining informed consent from a patient is especially important because it makes the patient aware of the potential risks that are associated with a medical procedure. An informed consent form outlines what happens during the patient’s medical treatment, any inherent risks of the procedure or treatment, and the financial responsibilities for the procedure or treatment.

To fully understand the risks, benefits, and alternatives of a medical procedure or treatment, a patient must be informed of these things before the medical procedure or treatment takes place. A lack of informed consent will deprive the patient of a full understanding of his or her medical procedure and related risks. As a result, the patient may make a medical decision that is not in his or her best interests.

There are legal requirements for obtaining informed medical consent and proper documentation in every state. In Indiana, all physicians are required to obtain informed consent from their patients prior to any medical examination, treatment, test, or procedure. Under the Indiana statute, the physician must provide medical disclosure and advise the patient of the following:

• The general nature of the patient’s condition
• The proposed examination, treatment, procedure, or test
• The expected outcome of the examination, treatment, procedure, or test
• The inherent risks of the examination, treatment, procedure, or test
• The reasonable alternatives to the examination, treatment, procedure, or test

If any physician or other type of health care provider fails to obtain the proper patient’s informed consent, the physician or health provider may be held liable for any harm that results to the patient. The patient will also have the legal right to file a medical malpractice lawsuit through an attorney, who can pursue damages for the patient’s injuries.

How Is Informed Consent Obtained?

In Indiana, informed consent by the patient is required for all pre-planned medical procedures and treatments. The process of obtaining the patient’s consent usually involves a discussion between the physician and the patient that provides the patient with an overview of the procedure, the inherent risks of the procedure, and the patient’s expected outcome after the procedure. The physician and patient discussion should also cover any available alternatives for the patient in lieu of the discussed procedure. Additionally, the patient should be allowed ample time to make his or her decision regarding moving forward with the recommended procedure or treatment.

Under state statutes, liability may not be imposed on a physician or health care provider on the basis of an alleged breach of contract, unless the contract is in writing and signed by the physician or health care provider, or by an authorized agent of the health care provider. Liability can only be imposed if the patient’s written consent form consists of the following three things:

• A signature by the patient or the patient’s authorized representative
• A witness to the signature who is at least 18 years of age
• The informed consent is explained verbally or in writing to the patient or patient’s authorized representative prior to the medical examination, treatment, procedure

If these statutes are not followed and a lack of informed consent is present, legal actions may be taken against related medical professionals for breach of contract and violation of informed consent. Signed consent forms are important to prevent communication errors, common issues that occur in the medical field. A communication errors lawyer often sees cases of medical malpractice caused by communication errors that occur between medical professionals and their patients.

Indiana, as well as most other states, only require informed consent by the patient for pre-planned medical treatments and procedures. An informed consent violation does not apply to life-threatening medical emergencies or to patients who are mentally incapable of understanding the medical information in the consent form. Under Indiana statutes, a patient also has the right to refuse medical information described in an informed consent form and withdraw his or her consent after signing the form.

When Is Lack of Informed Consent Medical Malpractice?

There are limited situations in which a doctor or medical professional may act without the patient’s permission. The exception is routine patient examinations and emergencies where the patient is unconscious. When a patient is unconscious due to an accident or medical emergency, the doctor has the right to take the necessary steps to revive the patient without informed consent.

You may ask, “How do I know if I have a medical malpractice case?” Lack of informed consent usually becomes medical malpractice when it leads to the injury, disability, or death of a patient. To have a valid medical malpractice claim, the injured patient must show that a doctor, medical professional, or hospital failed to meet the standard duty of care which resulted in harm and damages to the patient.

What Is Duty of Care?

Under the law, doctors, hospitals, and other medical professionals owe their patients a duty of care. This means protecting patients from harm and/or death by acting responsibly and following medical standards when performing medical treatments, procedures, and tests. If a medical professional or medical institution breaches this duty of care by acting in an unprofessional, negligent, or reckless manner that causes harm to a patient, the patient has a legal right to pursue a medical malpractice lawsuit for damages.

When filing a medical malpractice lawsuit, it is the responsibility of the injured patient to prove four important factors:

1. Doctor/Patient Relationship

The patient must prove an existing doctor/patient relationship at the time of the injury. This is usually done through proof of doctor’s visits and medical records of treatments and procedures.

2. Violation of the Standard of Care

The patient must prove that the doctor or medical institution violated the standard of care by acting in an unprofessional, negligent, or reckless manner. This usually involves the testimony of expert witnesses during a trial.

3. Cause of the Injury

The patient must prove that his/her injury was directly caused by the doctor, medical professional, or hospital providing patient care. Patients suffering from an existing health condition, injury, or disability may have difficulty showing proof if they do not hire a medical malpractice attorney who can provide the necessary information in court.

4. Patient Damages

For a successful medical malpractice outcome, the patient must prove that he/she sustained damages as the result of his/her injury. When damages are proven, the patient can recover compensation for lost income, medical expenses, pain and suffering, disabilities, and loss of normal enjoyment of life.

Medical malpractice cases often involve more than one doctor or medical professional. For best results, it is best to work with a medical malpractice attorney who handles these types of cases, and can help you determine if lack of informed consent applies to your case.