Every state has laws regulating the practice of medicine. These laws, among other things, require that a patient consent to treatment before a doctor performs it. When a doctor performs treatment that the doctor did not have consent from the patient to perform, the doctor has violated the law of patient consent. A patient may sue a doctor for violation of patient consent, under the law of medical malpractice. The details of violation of patient consent cases are discussed below.
What is Required to File Violation of Patient Consent Cases?
Violation of patient consent cases comprise a large number of the medical malpractice cases filed every year. In a typical medical malpractice case, a patient claims that a doctor was negligent in treating the patient, and that the patient was injured as a result. Medical malpractice, though, does not necessarily mean “the doctor screwed up” by performing a procedure incorrectly or incompetently. Medical malpractice can refer to any type of negligence. The failure to obtain patient consent before treatment, is a type of negligence, one at the core of violation of patient consent cases. If the failure to obtain consent resulted in a patient injury, the patient may file a lawsuit against the negligent doctor. “Injury” does not mean only “physical” injury. It means any kind of harm to a patient, including harm in the form of emotional distress. In violation of patient consent cases, a patient can receive money damages for physical and mental injury.
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What Kinds of Patient Consent Exist?
There are two types of patient consent. These include express consent and informed consent. Generally, a doctor must obtain both forms of consent before rendering treatment.
“Express” consent is a patient’s agreeing to medical treatment. Express consent is usually given in the form of written consent. “Treatment” includes surgery, anesthesia, and medical procedures not requiring surgery or anesthesia. Typically, a doctor gives a patient a form describing the type of surgery or procedure, as well as surgery that may have to be performed if complications arise. The patient is given the opportunity to read over the form, and is given the opportunity to sign the form. The patient must sign the form before treatment is given.
In violation of patient consent cases, a patient may allege that the patient was not given the opportunity to give express consent. A patient may also allege that he or she gave express consent, but that the express consent was not also informed consent. A doctor must provide “informed consent” by explaining the risks and complications that may arise during a procedure, and by allowing the patient to ask questions about risks and complications. “Express consent” is obtained by giving a patient a form. Informed consent is only given once a doctor explains what the information on the form actually means.
An example of failure to give informed consent occurs when a doctor gives the patient a written consent form, but fails to explain the medical conditions or jargon the form refers to, or the risk of complication or death from a procedure. Under the law of informed consent, a doctor must answer patient’s concerns sufficient to allow the patient to make an informed, knowledgeable decision about whether to obtain treatment.
In violation of patient consent cases, a potential plaintiff must be able to show that, if informed consent had been obtained, he or she would have not undergone the medical procedure because of the risks (which the doctor did not explain) involved. Specifically, the law requires that the plaintiff show that an ordinary person (as opposed to, say, a hypochondriac or someone afraid of operations), if given the needed information, would have declined the procedure.
If both the specific patient and an ordinary patient would have undergone the procedure anyway (i.e., even with being advised of the risks), then the patient generally cannot sue for failure to give informed consent. This is so because under the law of negligence, a doctor’s negligence must be the actual cause of a patient’s injury – the patient must show that had the doctor asked for informed consent, the patient would have declined the procedure.
How Can a Doctor Violate Patient Consent?
The typical example of violation of express consent is a doctor’s failure to adequately warn a patient of the risks associated with a medical procedure. Consent can be violated in other ways as well. Under the law of consent, patients have the right to refuse unwanted medical treatment. Negligently performing surgery on the wrong body part (i.e., left leg instead of right leg) violates this right. Similarly, if a patient consents to an operation on one organ, and the doctor ends up performing the operation on a different organ, or performs a second procedure the patient did not consent to, consent has been violated.
What are Specific Examples of Violation of Patient Consent Cases?
Violation of patient consent cases can be brought on a number of grounds. These grounds include:
- The consent form failed to identify a particular complication as a potential complication, the doctor failed to mention that complication, and the patient developed the complication.
- The risk of a complication was understated. If a patient was informed that the risk of a complication is one in a million when in fact it is one in one hundred, and the patient develops the complication, the patient has a strong argument that consent was not informed.
- The doctor’s description of the complications differ from what was stated on the form. For example, a doctor tells a patient to ignore a 20% risk of complication, stating, “Don’t worry; in all my years of experience, I haven’t seen this complication,” and the doctor knows (or should know) the patient is relying on the doctor for accurate information, the patient, if he or she develops the complication, can sue for violation of patient consent.