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Lack Of Consent

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LACK OF INFORMED CONSENT

Patients have a right to decide what treatment they receive. More importantly, doctors are obligated to provide sufficient details about treatment to allow patients to make “informed decisions.” When doctors fail to obtain patients’ informed consent prior to providing treatment, they may be held liable for malpractice. These issues about “consent” are further discussed below:

Treatment Against a Patient’s Wishes. Doctors might sometimes disagree with patients over the best course of action. Patients generally have a right to refuse treatment, even when doctors believe that such a decision is not in the patient’s best interests. A common example of this is when a patient has religious objections to a proposed course of treatment. When these disagreements occur, doctors cannot provide the treatment without the patient’s consent. Successful treatment will not protect the doctors from liability.

The Uninformed Patient. Patients have a right to make decisions about their own treatment. But that right is of little value if they are uninformed about the benefits and risks of proposed treatment. Therefore, doctors have an obligation to provide sufficient information to allow their patients to make informed decisions. For example, if a doctor proposes a surgery to a patient and describes the details of the surgical procedure, but then fails to mention that the surgery carries a significant risk of harm (like heart failure or paralysis), then that doctor may be liable for malpractice for his failure to inform.  It should be noted that the doctor could be liable even if other reasonably competent doctors would have recommended the surgery in the same situation. In this case, the doctor’s liability comes from a failure to obtain informed consent, rather than from a mistake in treatment or diagnosis.

The Emergency Exception. Sometimes doctors simply do not have time to obtain informed consent, or the situation makes it unreasonable. Medical malpractice law generally assumes that patients in urgent need of medical care who are incapable of providing informed consent would consent to life-saving treatment if they were able to do so. Thus, patients who receive treatment in emergency situations generally cannot sue their doctors for failure to obtain informed consent. It should also be noted that in the State of Georgia, any claim arising out of the provision of emergency medical care in a hospital emergency room or obstetrical unit must be proven by “clear and convincing evidence” that the healthcare provider’s actions showed “gross negligence,” which is indeed a very high standard.

Other Exceptions. Other exceptions to the informed consent rule may arise when a “reasonably prudent” doctor would not expect a procedure to pose a material risk to the patient and/or when the patient requests in writing that the information not be disclosed.  Additionally, an exception arises when the need for the procedure or the surgical act was not anticipated (or “foreseen”) when the consent was originally given by the patient, but the patient had given general permission to let the doctor make necessary decisions about the procedure.  Finally, a prior consent remains valid for up to 30 days in the State of Georgia.

WE CAN HELP

Because medical malpractice cases follow a complex body of rules and often involve complicated medical questions, it is often essential to get advice or representation from a medical malpractice attorney, who will then call on expert witnesses to bolster your case. Again, the attorneys at Jackel & Phillips are experienced and trained (with proven results) to handle medical malpractice cases and will be happy to provide a free consultation to help guide you through the complicated process of assessing your potential malpractice case.