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Informed Consent and Unauthorized Treatment

We trust our doctors to provide the correct medical treatment. We also trust doctors to treat all patients with the highest standard of care.

But how do we know if we are getting all the information? How do we know if we are making informed medical decisions? What happens if a doctor gives medical treatment without telling the patient about the risks or side effects?

And after a personal injury or medical condition happens, the questions continue. What is the next step? Do you need surgery? Can surgery wait? Which medication or treatment is right for you?

This article discusses medical malpractice cases based on informed consent and unauthorized treatment.

What Is Informed Consent Law?

Informed consent is when a patient gets proper information about and consent to treatment. The law gives patients the right to receive information before medical treatment. 

Informed consent is a doctor's ethical and legal obligation. State laws often take a patient-centered approach.

A doctor (or representative) should discuss the following with a patient before medical treatment:

  • Patient's diagnosis
  • Nature and risks of recommended treatment
  • Nature and risks of alternative treatment options
  • Consequences of taking no action

By law, the information must be easy to understand. As a result, patients can make informed decisions about their healthcare.

Medical professionals need a patient's informed consent before giving medical treatment. Lack of informed consent can lead to a medical malpractice claim.

Many hospitals, doctor's offices, and treatment centers have patients sign informed consent forms. That way, there is a record of informed consent.

Patient Competency

A patient must be competent to give informed consent.

The law assumes adults are competent unless they suffer from mental illness or other impairments. For example, a patient may not be able to consent under the influence of certain medications. 

Minors and Medical Consent

Minors are not presumed to be competent. As a result, they cannot consent to medical treatment and medical procedures. In these cases, the parent or guardian of the child must give consent on the minor's behalf.

Uninformed Emergency Medical Care

In emergency situations, competency standards can be different. If a person is not competent during an emergency, what happens? The competency rule changes. This is an emergency rule exception.

For example, someone is unconscious and requires life-saving medical care. Healthcare providers consider whether a reasonable patient would refuse medical attention if conscious and competent.

The emergency exception also applies when providing care will prevent permanent disability. In this case, we assume that a competent and reasonable person would want the doctor to prevent permanent disabilities.

If the doctor knows a patient would not consent to a specific treatment, the doctor cannot abuse this exception, even if it would save the patient's life.

Unauthorized Treatment Violates Patient Rights

If a doctor doesn't fully explain the procedure or the risks of the procedure, that treatment may not be authorized. To win a malpractice claim, the patient must show:

  • The doctor performed the treatment or surgical procedure without the patient's informed consent
  • If the patient knew about the risks of the procedure, they would not have agreed to the procedure
  • The patient suffered a harmful consequence due to the unauthorized treatment

If a doctor fails to get informed consent for non-emergency treatment, they may be charged with a civil offense like gross negligence and a criminal offense. Charges can include battery.

Ordering Tests Without Informed Consent

One type of unauthorized treatment occurs when a doctor orders unnecessary medical testing but portrays it as relevant to the patient's care. Or, a provider might perform a test without adequately explaining the risks and process.

Patients should understand the purpose of testing and screening procedures. Testing can be invasive and may increase the risk of injury. Unnecessary medical tests can also be expensive for the patient without yielding benefits.

Unauthorized Surgery

Another type of unauthorized treatment is extra surgical actions. You may have agreed to a specific procedure, but the surgeon decided to take more steps that they personally believed would be better for you. Failing to get your consent before taking those additional actions is a problem.

Surgery carries risk, and surgeons may need to respond to emergency scenarios. Yet, some unauthorized actions may be malpractice. 

Gross Negligence in a Medical Context

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.

Find Out if You Have a Valid Malpractice Claim

If you suffered injury because a medical provider didn't disclose the risks of treatment options, you may have a medical malpractice lawsuit.

If you are a victim of medical malpractice, consider contacting a medical malpractice attorney. A medical malpractice lawyer will discuss your legal rights and help you make informed decisions about your case.

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