What is Informed Consent?January 14, 2020
Patients in need of medical intervention should be in a position to fully understand the risks involved before they undergo any procedure or start treatment. Doctors have an obligation to disclose the risks involved with specific treatments and to be sure that the patient understands the risks and agrees that the recommended treatment is the best course of action.
Informed consent involves not only the patent’s acknowledgement regarding the advised treatment, but also the doctor’s explanations of the procedure and its risks, as well as the patients understanding of those risks.
Virtually all medical procedures involve some level of risk. It is important that patients fully understand the risks and make informed decisions about their care. Informed consent should address that concern. If something goes wrong during the procedure, and the patient did not provide informed consent, the patient may have a case for medical malpractice.
Informed Consent Standards
The legal standards for proving or disproving informed consent differ, but there are two basic theories that come into play. These two differing theories have to do with perspective. One considers whether a reasonable doctor in the same position would have informed the patient about certain risks, considering their significance and likelihood. The other takes the perspective of the patient, focusing on whether a reasonable patient would have undergone the treatment if the risks were revealed with viable medical alternatives. Different states apply different standards. The doctor’s-perspective standard usually involves expert witness testimony.
Doctors do not have to disclose every possible risk. Even if an unlikely risk comes to bear, the doctor may not be held accountable for not disclosing that it was possible. The standard holds that the doctor must disclose significant and reasonably likely risks, but not every possible risk.
When a mistake is made by a doctor, such as an operation on the wrong limb, the patient clearly has an informed consent claim against the doctor. However, if a procedure is performed on a problem that becomes apparent during the initial procedure, the doctor may be able to avoid consent rules. For example, if a surgeon sees that a heart bypass patient also needs repair to a damaged valve, the law may protect the doctor from a suit for lack of informed consent on the secondary procedure.
There are two main instances in which informed consent is not required. The first is in emergency medical situations when there is no time to obtain informed consent. The second instance involves the doctor making a judgment call regarding the patient’s emotional state. A doctor may determine that it is best to shield the patient from information pertaining to risks that might dissuade the patient from necessary treatment. In these cases, the doctor will have to prove that this reasoning was appropriate.
Baltimore Medical Malpractice Lawyers at LeViness, Tolzman & Hamilton Assist Clients with Informed Consent Cases
If you have a case against a medical professional after a procedure or treatment that lacked informed consent, the Baltimore medical malpractice lawyers at LeViness, Tolzman & Hamilton can help determine if you have a case and advise on the next best steps. Contact us online or call us at 800-547-4LAW (4529) to schedule a free consultation.
Located in Baltimore, Columbia, Glen Burnie, and Prince George’s County, we represent clients throughout Maryland, including those in Anne Arundel County, Baltimore County, Carroll County, Harford County, Howard County, Montgomery County, Maryland’s Western Counties, Prince George’s County, Queen Anne’s County, Southern Maryland, and the Eastern Shore, as well as the communities of Catonsville, Essex, Halethorpe, Middle River, Rosedale, Gwynn Oak, Brooklandville, Dundalk, Pikesville, Nottingham, Windsor Mill, Lutherville, Timonium, Sparrows Point, Ridgewood, and Elkridge.