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Medical Malpractice – Lack of Informed Consent

What is informed consent & why is it important?

As a patient, you are asked to trust in your doctor's professional opinion—since, after all, they are the ones with a medical degree. While it may be wise to follow your doctor's advice, it is also important to understand that you are entitled to full disclosure. In fact, all medical professionals are legally obligated to inform their patients of the risks involved in any of the medical procedures or treatments that they propose. Even if the risk of injury is small, you are still entitled to that information. Otherwise, you would be asked to blindly trust in your doctor's opinions. Fortunately, that is not the case. If a doctor fails to acquire your informed consent before performing a medical procedure, they would be liable for any injuries that subsequently arise.

Does a doctor have to disclose all possible risks?

While a doctor is not required to disclose every possible risk of a procedure, they are required to inform you of the most important ones—including unusual but serious risks. For example, you may not be able to establish negligence if you have suffered harm from an unforeseen complication. Had your doctor failed to inform you of more obvious risks (i.e. the possibility of surgical complications), however, you could argue that your injuries stemmed from a lack of informed consent. It is also true that simply agreeing to participate in a procedure does not amount to informed consent.

Rather, your doctor must explain, and give you the chance to review, the following information:

  • The purpose of the proposed procedure
  • The risks involved in the procedure
  • Information about alternative treatments
  • The chances of the procedure's success
  • The estimated cost of the procedure

When Informed Consent Would Not be Required

Under certain circumstances, a doctor would not be required to gain a patient's consent—most notably in the case of a medical emergency. When a patient's life is at risk or they have been rendered unconscious, their doctor may have no choice but to make a decision on their behalf. In this situation, consent may be implied under the rationale that the patient would have otherwise consented to emergency and/or life-saving treatment had they been given the choice. Even if they do end up suffering complications, the doctor would likely be shielded from a medical malpractice lawsuit. It is also true that informed consent would not be required when administering a routine, non-treatment procedure—which could include testing a patient's reflexes, checking their heart rate, conducting a physical examination, etc.

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