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Malpractice Law: Understanding Informed Consent

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Patient and medical professional discussing informed consent on Long Island.

When going in for any type of medical procedure, most people are aware that there are some risks involved. Since most people aren’t doctors, however, they don’t typically know the exact risks of a given procedure until they are informed by their doctor. Getting information about a procedure before agreeing to go forward is commonly seen as just part of good patient care, but it is also legally required.

Doctors are required to get what is called (both medically and legally) “informed consent” before they can perform any procedure. If you have had a medical procedure that resulted in an injury or other unwanted result, and your doctor (or other medical professional) didn’t inform you of the risks, you may have legal repercussions available. Informed consent is required for just about every type of medical procedure, though they are most common for surgeries.

Who Needs to Consent?

In most cases, the patient who is going to have the procedure done will need to be given all of the information about it, and then give consent for the procedure. In the case of minors, their parent or legal guardian needs to give consent. Doctors or their staff are required to determine who the responsible party is unless it is a life threatening situation.

Do All Risks Need to be Disclosed?

Informed consent does not mean that doctors need to list every possible risk that could occur, no matter how remote the chance. Legally speaking, the courts decide whether or not a medical professional should have disclosed a particular risk by looking at two factors:

  • Other Doctors – The first area the courts look at is whether or not other doctors in a similar situation would have disclosed a particular risk. If it can be shown that a competent doctor would have disclosed the risk, this will significantly strengthen your case.
  • Impact to Decision – The courts will also look at whether or not an average patient would have decided differently if they had been informed of the risk.

Due to the potentially urgent nature of some medical procedures, there are some exemptions to when a doctor does not need to get informed consent. If the patient is in a life-threatening situation or they are in an emotionally fragile state, for example, it may not always be necessary to get informed consent. Many doctors accused of failing to get informed consent will attempt to argue that one of these two factors were involved. Being able to prove that this was not the case may be essential for winning the lawsuit.

What If You Signed a Consent Form?

Once a doctor explains the risks of a procedure, they will have you sign a form that says you were told about the risks of the procedure. Even if you signed this type of form, however, it does not prove that you were properly informed. Courts understand that making medical decisions can be particularly stressful, and they have put the responsibility on the doctor or medical professionals to ensure that each patient is properly informed of all risks. Whether you have signed a consent form or not, you may still have a case.

Work with an Experienced Attorney

If you believe you have experienced any type of medical malpractice or that you were not properly informed of the risks of a procedure, you need to get legal help right away. The Law Office of Cohen & Jaffe is here to help you every step of the way, so get in touch with us today.

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