What Is “Informed Consent?”

Medical malpractice usually occurs when a healthcare provider commits some error while treating a patient, such as failing to timely diagnose an illness or improperly performing surgery or other medical procedure. However, some medical malpractice cases arise from a healthcare provider’s failure to obtain informed consent from the patient or their authorized representative before performing a procedure or treatment.

Because some procedures carry the risk of severe side effects and substantial impacts on quality of life, providers must ensure that the patient understands and agrees to the risks and has had an opportunity to evaluate all treatment options. A patient denied this information might be entitled to compensation for the financial and personal losses and the harm they experience from a medical procedure performed without their informed consent.

If you have more questions about informed consent and whether you were deprived of the ability to give informed consent in your treatment, reach out to Finz & Finz, P.C. today. We offer free initial case evaluations, so there’s no cost to speaking with a knowledgeable medical malpractice lawyer about the details of your case.

What Is Informed Consent?

Before any medical procedure can be performed, a healthcare provider must obtain informed consent from the patient or someone legally authorized to consent on their behalf. Informed consent involves explaining to the patient the risks and benefits of a proposed procedure or treatment, what alternatives may be available to the patient, and the risks and benefits of those alternate choices. Informed consent is intended to ensure that patients have all the information they need to make the best decision regarding their treatment and healthcare.

Just because a medical professional recommends one course of treatment does not mean their patient is required to accept that course. A patient has the right to select an alternate course of treatment or to refuse treatment entirely based on the patient’s evaluation of their treatment goals, tolerance to treatment, or ability to afford the procedure.

Is Failure to Obtain Informed Consent Medical Malpractice?

Informed consent medical malpractice cases typically arise in the context of elective procedures or treatment courses where a patient has more than one treatment option. A healthcare provider’s failure to fully inform the patient of the risks and benefits of every available treatment option (including the option of doing nothing) prior to obtaining the patient’s consent to a particular treatment may give rise to a medical malpractice claim when the patient suffers harm or loss from a procedure. Such loss could include additional costs from a more expensive treatment option, additional lost time from work, and additional pain and suffering from the side effects of the treatment. A patient may have a medical malpractice claim if they can show that they had selected another treatment option or refused treatment had they been given all appropriate information about their treatment options before giving consent.

In addition, a provider’s failure to obtain a patient’s consent, whether informed or not, can also lead to a medical malpractice claim. Except in certain emergency situations, providers are legally required to get a patient’s consent to a medical procedure or treatment. Without consent, a provider effectively commits battery on a patient.

Proving a Lack of Informed Consent Medical Malpractice Case

To prove an informed consent medical malpractice claim, you will need to establish that your provider failed to adequately explain your treatment options and that you would have selected another treatment option if you had been properly informed of your options and the risks and benefits of each. As with most other medical malpractice cases, an informed consent claim will require you to get expert testimony from another healthcare provider with similar training and experience as your treating provider. Your expert will need to explain what information you should have received under the applicable standard of care in your case and why the information your provider gave you was inadequate.

You may also need to present evidence, beyond your own assertions, that you would have chosen another treatment option with proper information. This may include evidence in your medical record and treatment notes regarding your stated treatment objectives, as well as testimony from yourself and family or friends concerning your goals for treatment (do you prioritize your quality of life over prolonging the duration of your life?), your personal tolerances (do you have an aversion to surgery, for example?), and your financial situation.

What Compensation Can You Recover in an Informed Consent Claim?

You may be entitled to compensation if you underwent a medical treatment that was conducted without your informed consent, or without the consent of someone authorized to provide it on your behalf. This compensation can include financial recovery for:

• The difference in cost between the procedure or treatment performed on you and another treatment you would have opted for had you been fully informed as to your treatment options
• Loss of income if you missed extra time from work recovering from a more intensive medical procedure that you would not have chosen if provided with full information on your treatment options
• Loss of earning capacity if you suffer permanent impairment or disability due to a medical procedure, if you would have chosen a less debilitating treatment option with full information
• Additional pain and suffering you experienced from a more invasive or intensive treatment or procedure that you would not have chosen with adequate information about your options
• Loss of quality of life, including permanent disability, scarring/disfigurement, or reduced life expectancy

Contact a Medical Malpractice Attorney If You Had a Procedure Performed Without Your Consent

If a medical provider performed a procedure on you without first obtaining your informed consent, you could be owed compensation for the injury, harm, and loss that you have suffered. Contact Finz & Finz, P.C. today for a free, no-obligation consultation with a New York medical malpractice attorney from our firm. Call us toll-free at (855) TOP-FIRM or fill out the contact form on our website.