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Is a patient’s lack of informed consent enough for a medical malpractice claim?

| Apr 21, 2021 | Medical Malpractice

Doctors, and virtually any health care provider for that matter, can’t legally perform any medical procedure on you without first securing your consent to do so. Instead, they must inform you of your medical diagnosis, the treatment options available and the benefits and risks associated with each. Doctors must convey all treatment-related concerns using language that patients can easily understand.

A patient may have a valid case for suing a doctor for malpractice if they prove that they suffered an adverse outcome because a physician failed to secure their informed consent to a specific medical treatment.

Who can lawfully consent to medical treatment?

Most jurisdictions’ laws require a patient to be 18-years-old or older to lawfully give their informed consent for a medical procedure. Parents must provide consent on behalf of their minor children. 

Anyone giving consent for medical treatment must also be mentally competent. A guardian or other legal representative may have to provide their informed consent on behalf of a patient with a mental illness or another disorder that impacts their judgment-making ability.

What risks do doctors face by not securing a patient’s informed consent?

Doctors who fail to secure a patient’s informed consent before performing a non-emergency medical procedure may expose themselves to criminal and civil liability. It’s not unheard of for prosecutors to file battery charges against a doctor who touched a patient’s body without their prior authorization. 

Instances in which patients file a civil lawsuit against their physicians aren’t uncommon either. Doctors often face gross negligence allegations when patients suffer harm which may be attributable to the doctor failing to disclose the risks associated with the procedure or not getting their permission to carry it out. 

What should you know if you sue your doctor for medical malpractice?

Proving that a doctor didn’t secure your informed consent isn’t the most challenging part of filing a medical malpractice case. Proving liability can be, though. An attorney can go over the steps that you may need to take to prove negligence occurred in your case. In general, the sooner you speak with an attorney, the better.