How Does Informed Consent Affect a Malpractice Lawsuit?

Not all medical malpractice cases involve situations where a doctor or other medical professional provided negligent treatment to a patient. Many cases arise because a doctor failed to properly explain the risks of the treatment and alternatives that could be used to avoid those risks.

These cases center on the issue of informed consent. Patients have the right to receive accurate information from their healthcare providers and the right to decide whether to accept the risks before agreeing to undergo treatment. When a doctor fails to provide adequate information or to obtain consent before performing certain procedures, a skilled Wyoming medical malpractice lawyer is often able to recover compensation for a patient who has suffered harm as a result of the procedure.

Understanding Informed Consent

Unless a patient is in a life-threatening emergency situation, medical professionals need to obtain informed consent before they can perform surgery and undertake many other treatments, particularly when there is a risk of harm from an adverse reaction or other side effect. There are two parts to the process of obtaining informed consent. First, a member of the medical team must inform the patient about the process and associated risks. The question of how much information must be provided can be subject to intense debate. Many legal cases hinge on the issue of whether a doctor provided enough information to enable a patient to make an informed decision.

The second part of the process of obtaining informed consent is getting affirmative consent. In some situations, it could be implied consent, such as when a patient extends their arm to allow a nurse to check blood pressure or pushes up a sleeve to allow a vaccination. A patient can also consent orally, saying, “yes,” or other affirmative language. Due to the risk of legal liability, however, medical offices often attempt to obtain written consent with a signature. They often ask patients to read many pages of information and sign at the bottom. Signing indicates consent, but whether it constitutes informed consent could be a matter of debate if the information is presented in a form that is difficult to understand and the patient is not given sufficient time to read it.

When determining whether a patient gave informed consent to a procedure, the court will often consider four questions:

• Did the physician explain the treatment adequately, including the risks, benefits, and potential alternatives?
• Did the patient have the physical and mental capacity to make an informed decision? (If not, that person’s guardian must provide informed consent.)
• Did the patient understand the key information relevant to their condition?
• Did the patient consent voluntarily without coercion?

If the answer to every question is not yes, then the treatment was not provided with informed consent.

How Informed Do You Need to Be?

Generally, your healthcare provider should disclose the benefits, risks, and alternatives to the treatment you are being asked to consent to. Sometimes, a procedure may have side effects and complications that are quite common, other problems that arise occasionally, and still other potential adverse effects that are relatively rare. Does the doctor need to disclose only the risk of common complications, or should they also discuss the risk of rare complications? How rare does a problem need to be to absolve a doctor of the need to disclose it? These questions often come down to a matter of opinion about what would be reasonable under the circumstances. To succeed in winning a malpractice case based on lack of informed consent, a patient needs to work with a Wyoming medical malpractice attorney who understands how to present expert testimony on these issues in a way that shows that greater disclosure was required and because it was not provided, the patient was unable give consent that was truly informed.   

In many cases, doctors are expected to discuss four issues about a procedure or treatment before asking the patient to consent to it:

• The nature of the treatment or procedure, including the steps involved in the process. 
• Benefits of the procedure and why the doctor is recommending it
• Risks of the procedure
• Reasonable alternative treatments (and the benefits and risks of those alternatives)

In addition, the doctor must assess the patient’s understanding of the information they’ve received, and the doctor should confirm that the patient understood the information so that they were able to weigh the risks and benefits to make a decision that was properly informed.

If You Weren’t Accurately Informed of the Risks, Ragain & Clark May Be Able to Help

If you suffered a side effect or complication from a medical procedure that you weren’t adequately warned about beforehand, you may have a legal case to obtain compensation for your pain, suffering, and other damage to your life. But legal claims involving lack of informed consent and other medical malpractice issues can be extremely complex, requiring extensive expert testimony. Insurance companies may be unwilling to settle these types of claims because they know they can be challenging to prove.

At Ragain & Clark, we have decades of experience succeeding in litigation, and we are always prepared to take cases to trial to get the best results for our clients. If you suffered painful or debilitating effects from a medical procedure and weren’t adequately warned about the risks, or you believe someone made a mistake, schedule a free consultation with us to learn what may be possible in your case.