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Gross Negligence and Lack of Informed Consent

We trust medical providers to choose the best course of treatment. However, patients have the final say in their care and treatment.

Doctors should provide patients with information about a medical procedure. Patients need to know the potential risks and alternative treatments available before agreeing to a healthcare provider's course of treatment. Additionally, medical care information should be easy for patients to comprehend.

What happens when a doctor does not give a patient all the relevant information about a surgical procedure? What happens when a patient does not consent to a treatment?

This article is an overview of informed consent and gross negligence in medical malpractice cases.

Informed Consent

Every state has laws to protect patient rights. States protect patient rights to receive information about:

  • Medical condition
  • Treatment choices
  • Possible risks of treatment
  • Prognosis

When providing medical information to patients, the information must be in plain language and easy to understand. Also, the information must contain enough details that a reasonable patient can make an informed decision about their health care. If a patient receives this information and signs a consent form, that consent is presumed to be informed consent.

A patient must be competent to give informed consent. Adults are competent unless they suffer from mental illness or other impairments. Minors are considered incompetent and are unable to give consent to medical treatment and procedures. Instead, a parent or guardian of the child must give consent on the minor's behalf. However, in an emergency, informed consent is waived.

Gross Negligence

Negligence happens when a person's actions cause harm to someone else. In medical malpractice, medical negligence occurs when a doctor's mistakes lead to serious injuries to a patient.

Gross negligence is a higher standard than regular negligence. A medical malpractice claim for gross negligence is when a doctor's conduct is extremely reckless, without care for life or property. Examples of gross negligence include:

  • Amputating the wrong limb
  • Leaving a surgical instrument inside a body cavity of a patient post-surgery

Some states allow medical malpractice lawsuits for gross negligence without expert testimony, based on the legal doctrine, res ipsa loquitur, "the thing speaks for itself." Under this doctrine, a court will presume negligence, making it easier for you to win. If a surgeon does not get informed consent before a procedure and the procedure results in injuries, a patient may sue for gross negligence.

Unauthorized Treatment

If a doctor does not have informed consent for a non-emergency treatment, the doctor can be liable in civil court. A doctor also can be liable for a criminal offense such as battery, or the unauthorized touching of a patient. To win a lawsuit alleging that a doctor performed a treatment or procedure without informed consent, a patient must prove:

  • The medical professional failed to disclose the risk or outcome of the medical treatment or medical procedure
  • Had the patient known about the risks or outcome, the patient would not have agreed to the treatment or procedure
  • The patient suffered a harmful consequence due to the unauthorized treatment

Get Legal Advice for a Malpractice Claim Today

Negligence and informed consent can be tricky legal concepts. It can be hard to tell whether a doctor has acted with the proper standard of care.

Sometimes, patients are not aware they have a personal injury from a doctor until much later. Experienced medical malpractice lawyers will know how to handle your case. If you would like to know your legal options, you can contact a medical malpractice attorney for help.

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