What Is Informed Consent in a Medical Malpractice Dispute?

What Is Informed Consent in a Medical Malpractice Dispute?

Imagine you are sick or injured and a doctor says there’s a treatment that can help you recover. You ask what the treatment involves, but the doctor evades your questions. You want to know if there are any risks or side effects associated with the treatment, but the doctor says you don’t need to worry about them.

If the doctor proceeds with the treatment, he or she could be on the hook for a medical malpractice lawsuit. Information is vital when it comes to medical treatments and procedures, and your doctor has an obligation to obtain your informed consent before moving forward.

More Than a Signature on a Consent Form

Informed consent is more than your signature indicating that you understand and agree to a treatment or procedure. Many people incorrectly believe that a doctor is automatically protected against a malpractice lawsuit because the patient signed an informed consent form, which is not the case.

In Florida, informed consent requires that the patient be advised of the following:

  • The nature of the procedure or treatment
  • Substantial risks and hazards of the procedure or treatment
  • Reasonable alternatives to the procedure or treatment (including doing nothing, if appropriate)

Your doctor simply handing you a form and telling you to read and sign is likely not enough to obtain your informed consent. You may not fully understand what you’re reading, which is entirely possible with that strange mix of medical and legal jargon on the page.

Also, your informed consent very likely can’t be given if the doctor fails to ascertain your understanding or avoids questions you have about the medical treatment or procedure. The point here is that a discussion needs to take place between you and the doctor where the procedure or treatment and its risks or alternatives are explained to you.

Would a Reasonable Person Understand?

Under Florida law, informed consent can only be given if a reasonable person would have a general understanding of the procedure or treatment, its substantial risks, and any alternatives from the information provided by a medical professional.

This emphasizes the point that doctors have an obligation to ascertain their patients’ actual understanding. A medical professional who verbally recites the consent form isn’t doing enough if his or her patient signs while still feeling confused about what the treatment is or if it’s even necessary.

If the patient lacks the capacity to understand what is being told to them – perhaps because of a developmental disorder or mental illness – informed consent can’t be acquired from them.

When Isn’t Informed Consent Required?

Under certain circumstances, medical professionals do not need to have a patient’s informed consent to act. This is especially true during medical emergencies when there is no time for a doctor to explain what needs to be done before acting to save the patient’s life. Even if the patient would have declined the procedure or treatment, the medical professional is unlikely to be successfully sued for acting.

Another situation where informed consent isn’t required is when the doctor knows that disclosing certain information could worsen a patient’s condition. The patient could be so sick with depression or anxiety that exposure to certain details of a procedure or treatment could cause their health to decline further.

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