Last Updated on March 6, 2024

Does Lack of Informed Consent Constitute Medical Malpractice?

Success in medical procedures and treatments is not always 100% guaranteed. This is especially true for surgeries and prescribed medications. Despite proven positive outcomes, some undesirable effects may still arise from special medical interventions. We must understand that every patient is unique; everyone responds to treatments differently

It is your doctor’s job to educate you on all prescribed treatments. They must help you understand the risks, benefits, and alternatives of these treatments – allowing you to make better-informed decisions for your health. Failure to do so breaches their professional oath and constitutes medical malpractice.

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Procedures that Require Informed Consent

In a nutshell, getting informed consent is practiced to safeguard the best interests of both doctors and patients. For doctors, getting informed consent could shield them from any unwarranted legal actions. For patients, it is a means to maintain autonomy over their recovery – giving them control over what treatments they want to have.

However, apparent communication challenges exist between doctors and patients. These communication challenges are the main contributing factors to medical malpractice (we’ll circle back on this later).

Here are some medical procedures that require informed consent:

  • Surgery
  • Medications with Potential Side Effects
  • Getting General Anesthesia
  • Blood Transfusions
  • Organ Transplant
  • Participation in Clinical Trials
  • Release of Medical Photographs

Patients can give consent in different ways – via written contract, verbal confirmation, or implied (following the prescription without written or verbal notice). In modern medical facilities getting informed consent is standard and second nature. 

If you’ve undergone the procedures listed above without any informed consent, we advise that you reach out to a medical malpractice lawyer right away. 

Components of Informed Consent

Written and signed consent forms are evidence of mutual understanding between doctors and patients. These are especially required in highly sensitive treatments. Here are some important segments included in these documents:

Description of the Recommended Intervention: This would include the medical justification, methodology, course of administration, instrumentation involved, and any additional requirements (like fasting for example)
Discussion of the material risks and benefits: Outlines the potential harms and advantages, with statistics on probability when available. Covers common side effects and serious risks. Also, this discusses the expected benefits when the intervention succeeds.
Explanation of reasonable alternative options: Discuss alternatives like non-treatment, waiting, medications, or surgery at another less affected site. Include pros/cons.
Overview of what to expect during recovery: Covers expected healing course, self-care instructions, likely symptoms, standard length of recovery, tips to report concerning symptoms arising, and expected outpatient follow-ups.
Statement that consent is voluntary: This confirms participation can be revoked anytime before treatment by the patient or surrogate.
Statement that questions were answered: Confirm staff answered any patient questions and that consent is given freely now with understanding.
Signature Lines: Signed and dated by patient/guardian, medical staff, and any witnesses. Shows official agreement by all parties.

Apparent Challenges (and Workarounds)

Despite consistent systematic efforts, communications for getting informed consent still have apparent recurring challenges. Healthcare systems are coming up with various ways to tackle these challenges – aiming to mitigate malpractice altogether. Here are some communication challenges that are often experienced by doctors:

  • Language differences are big considerations in ethnically diverse locales. Gaps in vocabulary and slang hinder proper patient education. It can be addressed by medical translators who can convey technical concepts accurately while capturing linguistic nuances.
  • Medical literacy gaps interfere with comprehension of risks, alternatives, and procedures. Various forms of media (i.e., printed guides, videos, diagrams, teach-back methods, and open-ended questions) are utilized to improve understanding across different education levels.
  • Time constraint is another notable challenge. In some cases where immediate action is needed, doctors may not find the time to properly educate their patients. Updated facility policies, workflows, and staff training ensure that a medical team can relay information properly – regardless of time constraints.
  • Some patients lack access to important medical information. Facilities should consider this and should tailor education efforts to the demographics that they are serving. 
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Special Considerations on Consent

In most situations, doctors can obtain voluntary informed consent directly from the patient themselves. But in certain contexts, where patients are unable or unqualified to do so, the right to give consent is handed down to certain individuals. Here are some common examples of these instances:

  1. For Children & Minors – Parents or legal guardians provide consent for treatments and procedures when the patient is a minor not yet of legal age to consent themselves.
  1. For Mentally Incapable Patients – If a certain mental illness (i.e., dementia, intellectual disability, or brain injury, etc.) prevents a patient from fully understanding treatment options, a legally appointed guardian or health care agent can provide surrogate consent based on the patient's best interest.
  1. In Emergency Situations – If a patient needs an emergency treatment but is unconscious or in shock, doctors may legally proceed based on implied consent to preserve life/health. However, doctors still need to get a patient’s consent as soon as they regain consciousness.

Seek Legal Counsel Today

In New York, the statute of limitations can be drawn differently from case to case – meaning you only have a set amount of time to file a medical malpractice claim. For this reason, we advise that you consult a lawyer as soon as you can.

At the Porter Law Group, we work in tandem with licensed medical professionals to establish and strengthen your claim. We do our best to ensure that you are rightfully compensated, helping you to recuperate properly. You do not need to pay anything unless we win. If you or a loved one has been a victim to this kind of medical malpractice, please reach out to us for a no-obligation, free case evaluation. You may also contact us at 833-PORTER9 or to schedule an appointment.

Written By
Michael S. Porter
Personal Injury Attorney
Originally from Upstate New York, Mike built a distinguished legal career after graduating from Harvard University and earning his juris doctor degree from Syracuse University College of Law. He served as a Captain in the United States Army Judge Advocate General’s Corps, gaining expertise in trial work, and is now a respected trial attorney known for securing multiple million-dollar results for his clients while actively participating in legal organizations across Upstate NY.
Legally Reviewed on March 6, 2024
Eric C. Nordby
Personal Injury Attorney
Eric, with nearly three decades of experience in personal injury litigation, holds a law degree with honors from the University at Buffalo School of Law and a Bachelor's Degree from Cornell University. His extensive career encompasses diverse state and federal cases, resulting in substantial client recoveries, and he actively engages in legal associations while frequently lecturing on legal topics.
This Article Was Professionally Reviewed
This page was Legally Reviewed by Eric C. Nordby on March 6, 2024. Our experts verify everything you read to make sure it's up to date. For information on our content creation and review process read our editorial guidelines. If you notice an error or have any questions about our content please contact us.
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