How Does Informed Consent Affect a Medical Malpractice Suit?

In New York, patients must give their consent to medical procedures prior to the commencement of the procedure. If a healthcare professional fails to obtain this consent, they could be looking at serious legal liability. In fact, informed consent issues are what underlie many medical malpractice cases in New York.

But what exactly is informed consent, and what types of issues does it raise in relation to medical malpractice cases?

Informed Consent in New York

Everyone knows what consent is: the granting of permission for someone to do something. However, under New York law, consent in the arena of patient care must be informed.

In other words, saying yes to something like a medical procedure is not enough. The yes must be based on an adequate understanding of the medical procedure and its risks.

Additionally, informed consent also requires medical professionals to advise their patients of alternative, safer treatments, especially if the treatment they are looking at is risky.

Risk Notification

Doctors must notify their patients of the risks involved in medical procedures. However, many procedures come with practically hundreds of different risks. Requiring a doctor to inform a patient about every single risk is simply not practical or required. Instead, doctors must disclose those risks that are significant.

How do you determine whether a risk is significant or not? One way to answer this question is to ask whether another reasonably prudent doctor would have warned the patient of the risk. If so, then the doctor should warn the patient.

Another way to determine whether a risk is significant and should be communicated to the patient is to ask whether a reasonably prudent patient would decide differently when informed of the risk. If they would decide differently, then the risk is material and should be communicated.

Exceptions to Informed Consent

Medical professionals’ obligation to obtain informed consent is not absolute. There are a few circumstances in which medical professionals need not seek informed consent from their patients.

For example, consider emergency medical situations. If a patient is in a life-or-death situation or a situation where significant bodily injury is imminent without treatment, medical professionals do not need consent to save the patient’s life.

A medical professional may also not require consent if the patient is incapacitated and therefore unable to provide consent. So a doctor does not need informed consent if they treat a person who has fallen unconscious in public due to a heart attack or other emergency.

Finally, voluntary waived consent on behalf of the patient or designated guardian overrides all previous known decisions regarding consent.

Taking Legal Action Based on Lack of Informed Consent

If you have been harmed by medical treatment that you did not consent to, you can potentially file a claim or a lawsuit for damages. However, your attorney must prove certain elements for the action to be valid.

Under New York state law, a medical malpractice claim based on lack of informed consent must show that:

• The medical provider failed to inform the patient of the foreseeable risks of the treatment and alternative courses of treatment (and their foreseeable risks) when a reasonable doctor would have
• A reasonably prudent patient in the same position would have rejected the treatment if informed
• The failure to give informed consent was the proximate cause of the patient’s injury

For doctors and other medical professionals facing a claim for damages based on lack of informed consent, there may be various defenses available, such as:

• The risk was a commonly known risk that did not need disclosing
• Obtaining consent under the circumstances was not reasonably possible
• The patient was adamant about having the procedure in spite of the risks
• The patient refused to be informed of the risks
• The healthcare professional reasonably decided that informing the patient would be detrimental to their health condition

In every case, you can expect the healthcare provider to put up a vigorous defense against allegations of medical malpractice. Not only is big money on the line in these cases but the healthcare professional’s license is as well. An informed consent case has the power to negatively affect a doctor’s career and the status of their medical license.

Regardless of what the healthcare provider’s defense might be, you can expect your medical malpractice attorney to pick it apart aggressively to get you the compensation you need.

Speak With an Experienced Medical Malpractice Lawyer Today

Medical malpractice is an awful occurrence. If you or someone you care about has experienced loss at the hands of a negligent medical professional, call Silberstein, Awad & Miklos for a complimentary consultation today. Let our team review your case and explore your options for getting justice.