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Medical Malpractice

Understanding Informed Consent in the Context of Medical Malpractice

November 16, 2022

Informed consent is a complex topic when it comes to discussing whether or not you may have a malpractice claim. In fact, it is common for people to not know what it is or how it applies to their case. Others think that it prevents them from pursuing a medical malpractice claim. If you believe that you are the victim of medical malpractice, a knowledgeable medical malpractice attorney can explain whether you have a case and how it may be affected by informed consent. 

What is Informed Consent?

Informed consent is the patient’s consent to medical treatment based upon information such as the name and nature of their illness and the potential benefits, risks, and complications associated with a particular treatment. It can also include a discussion of their options and the risks and benefits associated with alternative treatments. To put it another way, informed consent is when the patient gives permission to their healthcare provider once the patient has a thorough understanding of their illness and the treatment. 

The patient’s informed consent is typically memorialized by means of a signed statement indicating that they understand the risks and benefits of the treatment to be provided. It is not uncommon for patients to be unsure as to whether they signed an informed consent statement, especially when facing a serious health issue that requires extensive medical treatment. In addition, patients sometimes sign informed consent forms without really understanding what they are signing. 

When Is Informed Consent Required?

Generally speaking, patients must provide their informed consent prior to receiving any medical procedure beyond routine medical treatment. As a result, informed consent must be given prior to providing treatment such as the following: 

  • Surgery
  • Cancer treatment
  • Anesthesia
  • Blood transfusions and other types of blood work
  • Clinical trials
  • Vaccinations
  • Advanced medical testing such as biopsies   

Informed consent is not required in emergency situations for obvious reasons. If the patient is otherwise unable to give their consent (for example, if the patient is a minor, is unresponsive, or is mentally disabled), consent must be obtained by way of a parent or legal guardian.

Failure to Obtain Informed Consent May Be Medical Malpractice

The purpose of informed consent is to help patients make a knowledge-based decision as to what is the best thing to do for their health. Understanding the potential side effects, outcomes, and complications is critical to making an informed decision. As a result, you may have a malpractice claim if you suffer any complications or side effects if your physician failed to obtain your informed consent. 

That said, you must have suffered some harm in order to pursue a medical malpractice claim. The fact that your healthcare provider failed to obtain your informed consent is not sufficient by itself. 

Informed Consent Does Not Bar You From Pursuing a Medical Malpractice Claim

Informed consent protects healthcare providers from claims that involve side effects, complications, or negative outcomes that are commonly associated with a particular treatment. It does not protect them from medical malpractice claims that arise from negligence such as the following: 

In order for informed consent to be meaningful, the healthcare provider must make certain that the patient understands the information that they have been provided. In other words, a doctor or other professional should take the time to carefully explain the risks associated with the procedure and answer any questions the patient may have. The patient should not be asked to sign an informed consent form without first understanding the procedure and its potential risks. In that situation, you may have a medical malpractice claim even though you supposedly gave your informed consent. 

Another potential issue with informed consent can arise when the patient suffers a known side effect of the treatment that was not disclosed by their physician. In this case, the courts will typically apply one of two standards in determining whether the patient lacked the information they needed to give meaningful consent: 

  1. The reasonable physician standard: whether a competent doctor would have disclosed this specific risk; or
  2. The reasonable patient standard: whether a reasonable patient would have chosen to forego the treatment if they were aware of this particular risk. 

These are complex issues that can be almost impossible for a non-lawyer to assess. If you believe that your consent to treatment was based on insufficient information, contact a medical malpractice lawyer for help. 

Talk to a Medical Malpractice Lawyer at Ragain & Clark Today 

 At Ragain & Clark, we help medical malpractice victims across Wyoming and Montana rebuild their lives by getting them the compensation they need. If you have been harmed as a result of medical malpractice, contact us today by calling 406-651-8888 (Billings) or 307-388-6400 (Worland) to schedule a free consultation to discuss your case.


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