If you’ve ever undergone medical treatment or a surgical procedure, you should have been “consented” before either. Doctors and other medical providers must perform an informed consent before administering any treatment or performing an operation, with very few exceptions. Their failure to secure your medical informed consent could result in your physician facing a medical malpractice lawsuit if they failed to take this step.
Let’s explore what the medical informed consent process entails, why doctors must perform it, and the circumstances under which physicians face lawsuits for failing to carry it out.
What Does the Informed Consent Process Entail?
The American Medical Association (AMA) describes informed consent as an interactive conversation between physicians and their patients. It involves a patient agreeing to have a medical procedure performed on them by the doctor going through the consenting process.
The National Institutes of Health (NIH) emphasizes that the responsibility to procure consent for treatment rests solely on the treating physician’s shoulders and not on a referring doctor, nurse, surgical assistant, or hospital.
There are a few details your doctor should be clear about as part of the informed consent process, including:
- The name of any diagnosis they’ve assigned you
- Clearly identifying any medical treatment they recommend
- Addressing the benefits and risks associated with the recommended treatment option
- Outlining alternative treatment options and the pros and cons associated with them
- Highlighting the option of not undergoing treatment at all and the implications of doing so
The goal of the informed consent process is to provide adequate information about your condition and treatment options to make an educated decision about which choice is best for you.
Most Charleston patients cannot legally prove informed consent until they turn 18, except under rare circumstances. Instead, a parent has to provide that for them. West Virginia law doesn’t allow comatose patients, ones with certain intellectual disabilities, or patients with memory disorders to provide informed consent either, but a legal guardian or another appointee can do that for them. The same logic applies if someone has appointed a health care proxy to make medical decisions on their behalf.
What Types of Procedures Need Informed Consent?
Doctors and other health care providers generally must secure a patient’s informed consent before:
- Performing certain blood tests, like human immunodeficiency virus (HIV) ones
- Administering chemotherapy or radiation
- Performing certain medical tests, like biopsies
- Administering specific vaccinations
- Giving a patient a blood transfusion
- Performing most surgical procedures
- Administering anesthesia
Informed consent is also required when a patient participates in a clinical research study. They must be informed of the purpose and scope of the study and the risks and benefits they might derive by participating in it. The treating doctor must also assess your comprehension of any study-related information and verify that you’ve voluntarily agreed to participate in the clinical research before allowing you to participate in it.
As you might suspect, informed consent isn’t required when a patient is unconscious, or they may experience adverse outcomes if they don’t receive immediate medical care, including death. Our attorneys at DiPiero Simmons McGinley & Bastress, PLLC have extensive experience handling unfortunate personal injury situations involving your fellow Charleston residents. We aren’t intimidated when going up against doctors, hospitals, and medical systems when advocating for our clients’ rights.
What Is the Difference Between Consent To Treat and Informed Consent?
A consent to treat document, which is a document you’re generally asked to sign when checking in at the doctor, shouldn’t be confused with an informed consent form a doctor asks you to place your signature on.
General consent forms that form part of a Charleston medical practice’s intake packet simply gives the health care professionals in the office the right to examine, perform minor lab work or imaging studies, and administer relatively harmless treatments. This consent form allows office staff to simply engage with patients up to a certain point. One thing this consent form doesn’t do, though, is give providers a right to touch patients.
As with the general consent process, doctors are required to have you actually sign the informed consent document before they can move forward in performing any agreed-to procedure. Your signature on the informed consent affirms:
- Your medical provider has given you all the appropriate information about your prospective procedure
- You understood what your health care provider explained to you
- You’ve considered the information provided in determining whether to move forward or decline treatment
- You are authorizing some or all of the recommended treatment options
A medical provider can proceed and perform whichever treatment options you’ve agreed to once you give your informed consent. If you choose not to sign the document, it’s understood that you declined the treatment.
Patients can rescind their implied consent, which requires doctors not to perform a procedure if they haven’t started it yet or to stop what they’re doing immediately if it’s already underway.
What Can Happen if a Doctor Doesn’t Consent a Patient?
Doctors who fail to consent patients before performing a non-emergency medical procedure can be held criminally and civilly liable for their actions.
While facing criminal charges is a longshot, it is possible under certain circumstances. Prosecutors have previously filed battery charges against physicians who have touched patients without obtaining their consent.
Filing a civil lawsuit is a common outcome in situations where doctors fail to procure a patient’s informed consent. A situation in which you or a loved one faced adverse consequences, such as the following, may warrant the filing of a medical malpractice lawsuit:
- You received a blood transfusion or cadaver bone graft and later contracted HIV or some other bloodborne illness
- A doctor administered an epidural during labor without informing you of the long-term health complications this numbing agent can leave behind
The key element in the two examples above is that there’s no proof (since there’s no signed informed consent) that the patients in the scenarios above were given any information about the risks associated with their procedure to make an informed choice about the risks they were willing to take.
Legal Recourses You Have if a Failed Informed Consent Process Adversely Impacted You
West Virginia law allows plaintiffs who can prove that someone else’s negligence resulted in them suffering harm to file a civil lawsuit. If you suffered injuries or developed an illness because a Charleston physician failed to perform informed consent, then filing a medical malpractice lawsuit may be an option in your case. If the oversight resulted in your loved one’s death, then filing a wrongful death claim may be appropriate.
A medical malpractice claim may pave the way for you to secure a settlement that covers both past and future medical expenses, pain and suffering, mental anguish, compensation for your loss of enjoyment of life, lost wages, and other damages. A wrongful death lawsuit may allow you to recover compensation for some of the losses above, plus funeral and burial expenses and lost future earnings.
Perhaps the most important part of the health care decision making process is knowing what you’re dealing with and having all the necessary information to decide what course of action is best for you. If your doctor failed to do their job of informing you of your options and you suffered an adverse outcome as a result, then reach out to our personal injury attorneys at DiPiero Simmons McGinley & Bastress, PLLC. We’ll ensure you get justice if your doctor failed to perform medical informed consent.