Lack of Informed Consent And Gross Negligence

Posted by on Aug 16, 2016 in Personal Injury | 0 comments

When a patient needs to undergo operation or treatment, a doctor is legally bound to get their “informed consent” on what will be done. If the doctor fails to do this and something goes wrong with the patient in connection with the treatment, they will be liable for medical malpractice. According to the website of Karlin, Fleisher & Falkenberg, LLC, once informed, the patient has to explicitly agree to the procedure or treatment.

As most procedures may carry some potential risks, the doctor must properly communicate this to the patient who will then decide if they will undergo the procedure or treatment. Before conducting treatment, doctors will require the patient to sign a consent form.  It is their responsibility to provide all the necessary information about a procedure or treatment, which may include:

  • Description of the procedure or treatment
  • The purpose of the procedure or treatment, including desired outcome
  • An explanation of the key risks and potential complications involved+
  • An explanation of any alternative treatment or procedures
  • The likelihood of the procedure’s success

With informed consent, the patient has the opportunity to ask the doctor follow-up questions as well as sufficient time to consider the discussion and make an informed decision. It is worth noting that signing a form alone is not an indication of informed consent. The doctor must be able to discuss the procedure and risks with the patient. It does not have to be a detailed explanation of the risks but only those which are important.

In contrast, gross negligence in medical malpractice happens when a doctor does something wrong or causes harm to someone else. It is considered as a reckless action done by a person with no medical training. If a doctor does not have informed consent to perform a procedure and the patient gets injured, they may be sued for gross negligence.

In every rule there is an exception. For informed consent, the following conditions are exempted:

  • When the patient must act quickly to save the life of a patient and there is no time to explain the risks involved.
  • If a doctor is aware that the patient is suffering from emotional distress that they will refuse to undergo the procedure, they may not need to obtain informed consent.

The doctor is still liable for lack of informed consent if they perform a different procedure even if it was successful. However, the patient can only make a claim if such procedure was a mistake or not necessary.

 

 

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