Informed consent is the practice of sharing vital information with a patient
before he or she undergoes any procedure, test, or treatment. Every medical
procedure entails risks, though some are more serious than others. Physicians
must tell their patient about any risks beforehand. If a patient is not
informed, and is injured, he or she may file a medical malpractice claim.
An Overview of Informed Consent
Physicians have a responsibility to their patients to provide enough information
to make an informed decision as to whether to proceed with a particular
procedure or treatment. Generally, a patient will then be asked to sign
a consent form, which indicates that he or she understands the risks involved.
Signing a form may appear to leave a patient with no legal remedies, but
should the patient suffer injuries, this isn’t necessarily true.
If the physician left out important facts or risks concerning the procedure
or treatment, he or she may still be held liable in some cases. The patient
may not have chosen to undergo the procedure or treatment had he or she
known of the risks.
Risks That Must Be Disclosed
Physicians are not obligated to share every detail about a medical procedure
or treatment, so leaving information out doesn’t necessarily warrant
pursuit of legal action. What they must share, however, are any important
risks. Of course, an individual’s idea of important may be different
from another’s, therefore, there are general guidelines that courts
may use when determining whether a risk should be disclosed. A lawyer
can help you better understand how this applies to your case.
One guideline that might be used in some states is whether another physician
under the same circumstances would have informed the patient about a particular
risk or risks. One of the ways that this may be proven in court is through
a medical expert. Keep in mind that simply experiencing a negative outcome
doesn’t necessarily mean that any information was withheld that
might warrant a claim. Unforeseen risks may occur in various medical treatments
Another general guideline regarding informed consent that courts might
use is whether another patient, under similar circumstances, would have
opted out of the treatment or procedure had he or she been told of the
risk(s) involved. The courts may also consider if the physician informed
the patient of any alternative options to the treatment that was performed.
Medical expert witnesses may also be involved in these cases.
States may differ in the standard used when determining whether risks should
have been disclosed, so be sure to discuss this with an attorney. Ohio
uses the second standard regarding whether another patient in a similar
position would have refused treatment if risks were revealed.
There may be some exceptions concerning informing a patient of risks. For
instance, if the patient is being treated in an emergency situation, there
may not be enough time to go over the risks. What’s more, the patient
may be incapacitated, or otherwise unable to make an informed decision.
Contact Mellino Law Firm for a Free Consultation
If you have questions about informed consent, call us today at (440) 333-3800
for a free consultation.