Failure to Warn Patients of Risks Associated with Surgery or Treatment

Express consent means that a patient has given their medical practitioner their consent for a procedure by signing a document. In some cases, an oral admission may be acceptable. But in most cases, the patient would sign a consent form.

If you have ever had an MRI, X-ray, or minor surgery like wisdom tooth extraction, you have seen this two-page form that describes the possible complications of the procedure. Many also include information on aftercare to help mitigate the side effects.

Many people assume that signing the document is informed consent. However, informed consent is having your doctor explain the complications and risks, as well as discussing any concerns with you before a procedure.

Typically, the two types of consent go hand-in-hand, with a doctor getting you to sign the form after they have your informed consent.

Surgery should not happen if both types of consent have not been received. If you are given a surgery such as a heart transplant without any opportunity to discuss it with a doctor or without written permission, the doctor would have violated your rights.

In situations where you are unable to consent, such as being incapacitated due to injury or dementia, your power of attorney for personal care can consent on your behalf. In this scenario, consent is still required but by someone you have appointed to be your caretaker.

When You Can Assume Consent

Assumed or implied consent is given for non-surgical medical treatments. It is a time-saving system that assumes a patient is giving consent by appearing for their appointment. For example, if a patient shows up to get a flu shot from a doctor and rolls up their sleeve, that is read as consenting to the procedure.

Implied consent does not mean that a patient cannot ask questions. If a patient worries about the side effects of a medication or procedure, they may still exercise their right to informed consent by making inquiries.

In emergency treatment situations, such as when a patient is unconscious and in critical condition after a car accident, medical professionals can assume consent for life-saving surgery. They will try to contact next of kin or powers of attorney, but must assume consent for their immediate actions and procedures to save the patient’s life.

Causes of Lack of Informed Consent

Inattention to Detail

Inattention to detail can be crippling for a doctor’s attempt to refute a lack of informed consent lawsuit. Doctors are in a hurry and often forget to check that all of the details of administrative work, such as obtaining informed consent, are accounted for.

Commonly, doctors will forget to have a witness and get them to sign, forget to sign themselves, or forget to document the date and time of signatures. Not completing the paperwork properly can nullify their informed consent.

Non-Standard Language

Doctors use legally binding forms for their patients. In some cases, they may alter the language to suit their own purposes, which can open them to a risk of malpractice claims. If they veer from the legal language, even in verbally expressing the risks, they are potentially liable if the patient did not understand them.

Poor Descriptions

The biggest mistake doctors make that leads to lack of informed consent lawsuits is not giving patients specific information. Patients need to be informed about their specific procedure and the risks based on their health. Doctors who give patients generic information about surgeries are failing them.

Patient Competency

Doctors must ensure that patients are of sound mind before having them sign informed consent documents. The patient must be over age 18, be capable of understanding the risks, and be capable of remembering the risks. They must not be under the influence of alcohol or mind-altering drugs.

If a doctor performs a procedure on someone who was incompetent to sign for consent, they are committing assault.

Signing Under Duress

If a doctor coerces a patient into signing their consent papers, the patient is not actually consenting. They would be considered under duress and the doctor would be liable for malpractice.

Lost Forms

Missing consent forms are a large risk for hospitals. With many patients being seen daily and a variety of administrative workers, paperwork can go missing. However, if consent forms are lost, the doctor may be found liable for malpractice.