Informed consent refers to the act when a patient consents to a surgery or treatment plan before the doctor is allowed to complete the procedure. The doctor is required to fully inform the patient of the possible outcomes and consequences associated with the medical procedure such as a surgery. Although the specific definition of informed consent may vary from state to state, its definition is that the patient has made a knowing decision about a medical treatment or procedure after a doctor or other health care professional discloses all the information a reasonably prudent medical provider would give to a patient regarding the risks involved in the proposed treatment or procedure. In New York State, the law of informed consent is set forth in Section 2805-d of the Public Health Law:
“Lack of informed consent means the failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical, dental or podiatric practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation.”
If your doctor did not receive your informed consent to proceed with a procedure, but did so anyway, you may be eligible to file a medical malpractice lawsuit. Nonetheless, there are some cases in which a doctor is not required to receive express informed consent. One such example is emergency situations where a doctor must take immediate medical action in order to save a person’s life. There are also instances when the patient is unable to give consent due to mental illnesses. In these cases, a guardian is typically allowed to make medical decisions for the patient. In New York State, there are additional hurdles to being successful in a medical malpractice case based upon the lack of informed consent. The Public Health Law states that:
“It must also be established that a reasonably prudent person in the patient’s position would not have undergone the treatment or diagnosis if he had been fully informed and that the lack of informed consent is a proximate cause of the injury or condition for which recovery is sought.”
Informed consent may be either “express” or “implied.” Express consent is given in writing, or can be given verbally. A written informed consent form should include all of the information needed for a patient to make an informed decision about whether or not they would like to undergo the procedure. This should include:
The name of the doctor who will complete the surgery Summary of your medical condition The purpose of the procedure The risks of, and alternatives to the procedure Estimated cost of the surgery Estimated recovery time
Consent not given by a patient in writing or verbally, but nevertheless understood from the circumstances surrounding the procedure or treatment at issue is known as implied consent. Consent may be implied when, for instance, a patient presents him or herself for a relatively simple, non-invasive procedure. Consent is also usually implied for necessary procedures a surgeon might perform in the course of a surgical procedure to which the patient did consent.
Negligent doctors who do not receive the express informed consent of their patients before performing medical procedures with known risks need to be held liable for their actions.
If you or a loved one are the victim of such negligence, feel free to call me directly at 516.358.6900 or via email at RJaffe@lcjLawFirm.com.
Richard Jaffe, Esq. Law Office of Cohen & Jaffe, LLP www.CohenJaffe.com 516.