Lack of Informed Consent

Medical malpractice occurs when the negligence of a medical provider results in injuries to a patient including the worsening of a medical condition following medical treatment.  When a medical professional performs a medical treatment, procedure or test without the informed consent of the patient, the patient may have the right to a medical malpractice claim for informed consent.

What is Informed Consent?

A patient gives informed consent when they voluntarily agree to a medical procedure, treatment or test with an understanding of all the risks and benefits associated with that course of action.  Informed consent can only be given when a patient has the ability to make decisions about their medical care.  If a person is coerced or agrees to medical care under duress, there is no informed consent.

Although a patient does not need to know or understand every detail of the proposed medical treatment, there must be enough information provided that a “reasonable” person would be able to make an intelligent decision.  Medical providers must use both language and terminology that the patient can understand.

For consent to be informed, a patient must understand all of the information provided by the medical provider. Patients must also show the ability to evaluate the personal costs and benefits of consenting to the proposed medical procedure, treatment or test.  Children cannot give informed consent.

If a person is intoxicated, suffering severe injuries or under extreme emotional stress, they may not possess decision-making capacity to give informed consent at that time.  Individuals may prepare advance directives or living wills to provide directions to doctors concerning the type of medical treatment they give consent to in the case of their incapacity.

Written Consent Forms

To demonstrate informed consent, the medical provider must disclose the following about the recommended medical procedure, treatment or test usually on a written consent form:

  • An explanation of the medical condition
  • Expected benefits (and likelihood that the benefits will occur)
  • Expected risks including the possible complications (and likelihood that the risks or complications will occur)
  • Consequences of choosing each medical option
  • Description of alternative medical treatment options

Both patients and doctors usually sign the written consent form.  Patients who agree to take part in clinical research trials will be asked to sign special written consents forms with respect to the unique risks of being research study participants.

Implied Consent

At certain times, medical consent is implied.  For example, a patient’s consent is implied during routine physical examinations by a doctor.  Routine x-rays, blood tests and splints/casts also do not require separate informed consent from patients.

If a patient is incompetent to give permission for emergency medical treatment, consent may also be implied under certain circumstances. During emergency situations, consent may be implied when emergency medical care is needed to prevent serious or irreversible harm to the patient.

At times, surrogate medical decision makers such as family members or court-appointed guardians may provide informed consent on behalf of a patient.

Right of Refusal

Patients can choose to make “bad” decisions as long as they have received all the necessary information from their medical providers. Similarly, patients have the right to refuse medical treatment.  When a patient decides not to follow the recommended medical course of action, they may be asked to sign an “Against Medical Advice” (AMA) form to protect the medical provider from legal liability and a claim for medical malpractice.

Lawyers at Edelstein Martin & Nelson, LLP Represent Individuals Injured from Lack of Informed Consent

The Philadelphia personal injury lawyers at Edelstein Martin & Nelson, LLP represent individuals in medical malpractice claims resulting from the failure to obtain informed consent from a patient prior to treatment.  Our experienced lawyers assist patients throughout the entire litigation process from the initial investigation of the claim through trial preparation and/or settlement negotiations. If you or a loved one has been injured as result of medical malpractice, including a medical provider’s failure to obtain informed consent, call the Philadelphia personal injury attorneys of Edelstein Martin & Nelson, LLP today at (215) 731-9900, toll free at (800) 300-0909 or submit an online inquiry to schedule a free consultation.