The notification should be in understandable language. The doctor or nurse must answer your questions about the procedure and anything that appears on the consent form.
However, in emergencies (§31-9-3) where a person is unable to consent a medical professional can give treatment if they determine “any delay in treatment could reasonably be expected to jeopardize the life or health of the person affect.”
In general, no one has the right to perform medical procedures on you against your will. Medical professionals must obtain your consent and explain enough so that you understand:
What You Are Letting Them Do
The consent form should contain both the technical terminology and plain language. For example, a consent form that only lists the procedure as a cholecystectomy is improper. A typical person on the street would not know that term means the surgeon will remove your gallbladder.
Why They Think It Is Necessary
To carry forward with the gallbladder example, the consent form should explain that the reason for the surgery is because you have gallstones. Merely stating that the reason for the cholecystectomy is cholelithiasis (without an explanation that this means you have gallstones in the gallbladder) is insufficient.
What They Hope To Achieve With the Procedure
In this situation, the goal is to remove the source of your pain and prevent future gallstones, infection, and possible pancreatic inflammation.
The Known Risks of the Procedure
Every procedure has known risks. For a gallbladder removal surgery, the consent form should warn of the risk of bleeding, infection, pancreatitis, injury to nearby organs, bile leak, blood clots, heart problems, and pneumonia. If, for example, the form did not warn of the risk of injury to nearby organs and the surgeon accidentally perforated your bile duct, you might have a malpractice claim for failure to disclose a known risk.
Other Ways You Could Treat the Problem
They should mention both types of cholecystectomy: open – which involves a large incision and longer, more painful recovery, and laparoscopic – which involves several smaller incisions, less pain, and quicker recuperation. They should explain the benefits and risks of both options and why the doctor chose which procedure to use on you. The form should also list conservative options like dietary modifications and explain why they are not effective for preventing gallstones.
If the medical professional does not give you all that information, you have not granted him informed consent. Without consent, the doctor has no right to perform the procedure.
Failure to Disclose all the Known Risks
Sometimes it can be hard to determine whether a person should have done something, but there are two litmus tests for whether the doctor should have warned you about a known risk:
- If knowing about the risk would have been a deal breaker for a typical patient in a similar situation, the doctor should have notified you. The issue is not whether you would have found the risk unacceptable, unless the doctor knew you would refuse the procedure if fully informed.
- If other doctors in a similar situation would have warned of the risk and allowed the patient to decide whether to accept the risk and go forward with the procedure or refuse the treatment, the doctor should have notified you of the danger.
When the Failure to Disclose a Known Risk is Medical Malpractice
You might be eligible for compensation if you had an adverse outcome from a medical procedure and the manner in which the procedure went wrong was not something your doctor told you about when she explained the procedure to you. If the doctor knew about the risk and other doctors would have told you about the risk in a similar situation, the failure to disclose can be the grounds for a medical malpractice claim.
When Your Doctor Does Not Have to Get Your Informed Consent
There are four situations in which your doctor usually does not have to obtain fully informed consent before performing a medical procedure:
- In an emergency when there is no time to explain all the risks, benefits, anticipated outcomes, and medical alternatives
- If you are unconscious, medicated, or otherwise lacking legal capacity to give consent and there is no one present with legal authority to give consent on your behalf
- If the patient’s emotional state is extreme, for example, if the patient’s phobia of medical treatment is so great that he will refuse any procedure, even though doing so means almost certain death or another extraordinarily negative consequence
- If the doctor discovers a significant problem while performing a medical procedure for which the patient gave informed consent. The doctor usually can correct the problem without getting your consent to perform the additional work. For example, while doing surgery to remove cysts in your abdomen, the surgeon discovers that you have a perforated ulcer that probably will cause infection and internal bleeding if not corrected.
Contact a Medical Malpractice Lawyer
If you suspect that a healthcare professional did not tell you everything they should have told you before a medical procedure, call the Law Office of Jason R. Schultz, PC. We will talk with you about informed consent in the context of a medical malpractice case at no charge, evaluate whether you might be eligible for compensation, and explain how to report medical malpractice. For your free consultation, call 404-474-0804.
