Why Doctors Must Obtain Informed Consent
Although it is scary to think about having to undergo a surgical procedure, most people will “go under the knife” at some point in their lives. Whether it is as simple as the removal of wisdom teeth, or as complicated as a quadruple bypass, sooner or later almost everyone needs some type of operation.
Doctors are required to obtain “informed consent” prior to beginning a surgical procedure. The key is that informed consent is not merely getting a patient to “sign here.” Proper informed consent is a communication process, a process by which a patient learns about and agrees to undergo a particular surgical intervention.
In general, the key components of an informed consent conversation should include the following:
- If known, the diagnosis of the patient’s condition or illness
- The reason for proposed treatments, procedures, or surgeries
- The advantages and disadvantages of each treatment or procedure
- What alternatives may be available
- The pros and cons of any alternatives
- What may happen if the patient declines the doctor’s recommended course of treatment
Every single possible outcome does not have to be disclosed by the physician. However, if other physicians would have disclosed such a possibility, or if the patient’s decision may be altered after learning of the possible outcome, the physician should disclose it.
It should be noted, however, that there are some exceptions to informed consent rules. In some situations, a parent or guardian may give informed consent on behalf of another individual. Further, if the patient is suffering from a life-threatening emergency, it may not be necessary to obtain consent before treating the patient. In addition, a surgeon sometimes has permission to correct other issues he or she notices during a surgery, depending on the circumstances.
Why is informed consent so important?
Fundamentally, the concept of informed consent is an ethical concept. Patients should have a right to decide what is to be done with their bodies. This, of course, includes the right to refuse recommended treatment. If physicians do not disclose key information about what is proposed and about the advantages and disadvantages of the proposal, patients essentially are denied that fundamental right.
Informed consent also has become important from a legal perspective. By using a proper informed consent process – and documenting it in a patient’s chart, a physician may be able to protect him or herself when the proposed procedure does not result in the desired outcome.
Does this mean that every time there is a bad surgical outcome, the doctor is shielded or protected from a lawsuit, as long as the doctor disclosed the risk of a bad outcome? No. If the bad outcome was the result of negligence, the physician is still responsible, even if the result was disclosed in the informed consent process.
For example, sometimes the facial nerve may be injured during the course of an operation to remove a tumor in the parotid gland. This happened in the case of a woman recently represented by The Eisen Law Firm, and it caused a permanent facial paralysis. Now, most doctors tell patients that during the course of such a surgery, the facial nerve can be injured, and in our recent case, the doctor did just that. But, that doesn’t give the doctor a license to injure the nerve. If in a given case the injury could not be avoided with the use of ordinary and reasonable care, then it is not negligent, and the informed consent can help the doctor. That might be so where the tumor is wrapped around the nerve or under other circumstances. On the other hand, where reasonable care would have resulted in no injury to the nerve, the physician is responsible for the injury, even if he warned the patient that the nerve could be injured. That is precisely what happened to our client.
Taking the time to go through the informed consent process is critical to both the patient and the physician. The process ensures that the patient has the information necessary to make an important decision about his or her body. It also helps the physician better understand the patient and their treatment goals, and it may provide cover to the physician when treatment goals are not reached.
What if a doctor does not obtain informed consent?
The law requires doctors to obtain informed consent. It does not allow the doctor to delegate that task to nurses or physician assistants. If a doctor does not obtain informed consent for a certain procedure, and the patient is harmed by that procedure, the patient may have grounds for an informed consent claim.
An informed consent claim is a form of medical negligence. In Ohio, the elements of an informed consent claim are:
- The physician failed to disclose the material risks and dangers involved in a proposed course of treatment (therapy, surgery, etc.);
- An unrevealed risk or danger actually materializes and causes injury to the patient; and
- A reasonable person in the position of the patient would have decided against the proposed course of treatment (therapy, surgery, etc.) had the material risks and dangers been disclosed in advance.
Like all medical negligence cases, informed consent cases can be complicated and require the testimony of medical experts. In particular, experts must testify about what the material risks of a given, proposed treatment may be, as well as what must be disclosed to the patient about alternatives to the proposed treatment.
Contact our Cleveland medical malpractice attorneys today for reliable legal guidance
At The Eisen Law Firm, our Cleveland medical malpractice attorneys are experienced in all kinds of medical claims and have handled many informed consent violations on behalf of our clients. To schedule a free consultation with our legal team and learn about your legal options, call 216-687-0900 or contact us online.