Doctors have a duty to disclose risks to patients
The law allows a patient to have control over his or her own body. To that end, a patient must give informed consent to a doctor before the doctor can perform a medical procedure. The patient needs enough information to make an educated and intelligent decision regarding medical care. When at all possible, a doctor should inform you:
- What illness or condition you have
- What treatments are available
- The risks involved with those treatments
- The likelihood of success for those treatments
- The risks of failing to undergo the treatments or procedures
- The risks of alternative treatments or procedures
A doctor or hospital will often get a patient’s consent in writing, but a patient can give oral consent as well. In emergency situations, such as when the patient needs immediate care but cannot speak or otherwise give consent for treatment, then consent is implied.
The extent the doctor or health care provider has to inform a patient of risks
A doctor does not need to disclose every possible risk or medical alternative, only disclosures required by law. For example, a doctor would not need to disclose risks to the patient if the patient didn’t want to know, where disclosure could harm the patient or if the procedure is simple and the medical community views the danger as low. A general standard is if a reasonable doctor would disclose the danger, then he or she is obligated by law to disclose potential risks.
What happens if a patient did not give informed consent?
Courts have established a doctor is negligent if he or she has failed to inform a patient enough to enable the patient to give informed consent. While state law can vary, a patient can generally recover damages for a lack of informed consent if:
- The patient was unaware of risks associated with the medical care
- The physician or other health care provider did not disclose the risk
- The patient would have chosen different treatment or procedure if he or she had known the risk
- The treatment or procedure resulted in an injury to the patient
If any one of these is missing, then there may not be a medical malpractice claim. If you have been injured by a medical procedure and did not give informed consent, contact a personal injury attorney to discuss your case.