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Informed Consent and Medical Malpractice

Patient reading an informed consent document in front of doctor.

Informed consent is a core component of medical ethics. Healthcare providers are legally obligated to provide their patients with the information they need to make an educated decision about their healthcare, as well as receive their approval before proceeding with medical treatments. If your medical care provider administered treatment before making sure you understood the risks, you could have grounds for filing a medical malpractice claim

The legal team at the Law Offices of Dr. Michael M. Wilson, M.D., J.D. & Associates, can investigate whether your doctor received your informed consent and help you secure the legal compensation you deserve if they did not. Contact us today to learn more about your legal rights and options in a free, confidential consultation.

What Is Informed Consent?

In medical contexts, a patient’s “informed consent” refers to their express agreement to undergo a treatment with the full knowledge of its nature and risks. Medical providers are required to obtain informed consent because every patient has a legal right to know what could happen to them if they agree to a medical course of action.

Informed consent is an essential component in all provider-patient relationships because of the potentially life-changing consequences many medical treatments can have. Some patients may refuse certain treatments for personal reasons (e.g., spiritual or religious preferences) or simply because they are uncomfortable with the level of risk involved. Obtaining a patient’s informed consent gives them the necessary information and opportunity to make educated healthcare decisions for themselves.

If a physician does not obtain informed consent and administers a treatment anyway, the patient may have legal grounds to file a medical malpractice lawsuit. Even if the patient would have agreed to undergo treatment with full knowledge of the risks, a physician stripping them of their right to make an informed decision may constitute malpractice.

Importantly, a patient’s signature on a consent form is not automatic evidence of informed consent. To get valid consent, doctors must thoroughly explain potential treatments to their patients, answer their questions, and ensure they are capable of fully processing the discussion.

When Is Informed Consent Necessary?

Physicians do not need to obtain informed consent for every step of a procedure nor inform patients of all conceivable options when discussing treatments. Rather, physicians must simply provide patients with the information any reasonable person would want to know before agreeing to a course of action, including risks and benefits. To illustrate, informed consent is necessary before performing:

  • Surgeries
  • Chemotherapy and other cancer treatments
  • Certain blood tests
  • Clinical research trials
  • Blood transfusions
  • General anesthesia
  • Invasive diagnostic tests
  • Certain vaccinations

Again, as a rule of thumb, informed consent is necessary when a reasonable person would likely hesitate or flat-out refuse to undergo a certain treatment after receiving the relevant information. Similarly, if another doctor would likely inform their patient of the risks in question before performing a certain procedure, your own doctor should do the same.

doctor and patient

When Is Informed Consent Not Necessary?

The most common situations in which informed consent is unnecessary are routine medical procedures, such as standard checkups, vital-sign measurements, and non-invasive treatments with little risk of adverse effects. Most patients anticipate these standard, low-risk services as part of their care, so signed consent forms are generally unnecessary.

However, though doctors need not obtain direct informed consent from a patient incapable of providing it, they must normally get it from the patient’s legal representative. For example, patients who are minors generally cannot legally provide consent, so their parent or guardian must usually give it on their behalf. Similarly, patients with an intellectual disability or who are unresponsive (e.g., someone in a coma) should have an authorized representative give it on their behalf as well.

Are There Exceptions to the Informed Consent Requirement?

In certain situations, doctors can administer treatment without getting the informed consent they would usually need to proceed. The most common examples involve incapacitated patients and medical emergencies. If taking time to explain treatment options would put a patient’s life at risk, medical providers may be able to administer potentially life-saving treatment without informed consent.

Can I File a Medical Malpractice Lawsuit If the Doctor Performed a Different Procedure than the One I Consented To?

Yes. If your doctor performed a different procedure than the one you consented to, you could sue for malpractice based on lack of informed consent. Just because the procedure was successful does not release them from their duty to obtain your consent, even if you would have agreed to it anyway. In these situations, it is best to speak to an experienced medical malpractice lawyer to determine whether you have a case.

How Long Do I Have to File a Medical Malpractice Case for Lack of Informed Consent?

Medical malpractice lawsuits must be filed before the governing statute of limitations in the jurisdiction where the malpractice occurred. Subject to very limited exceptions, presiding judges are nearly always forced to dismiss cases filed after the governing deadline. Following the date on which the malpractice occurred, deadlines in the three jurisdictions our attorneys normally work in are as follows:

These deadlines may be extended in certain scenarios. However, determining whether exceptions apply can be complex. Further, there are certain other key deadlines to bear in mind (e.g., requirements that notice be given to defendants). Since the consequences of a late filing can have a devastating impact on your case, it is best to consult with an experienced attorney as soon as possible.

Contact a Washington, D.C., Medical Malpractice Lawyer

If your doctor performed a medical procedure without your informed consent, contact the Law Offices of Dr. Michael M. Wilson, M.D., J.D. & Associates to discuss your legal options. We are ready to help you secure the compensation you deserve for any harm you have suffered, as well as violations of your rights as a patient. We offer confidential consultations at no cost to you.

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