What Constitutes Truly Informed Consent?

  • Posted on: Sep 19 2017
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If you are considering filing a malpractice claim against a podiatrist in New York, you may have many questions. You may not know if you have a valid case, or how much compensation you will receive. You might be trying to find the right lawyer to handle your case. You know you signed some papers before your podiatrist performed the procedure, but in the stress of the moment, you are not certain what they meant. What constitutes truly informed consent?

Podiatrists in New York are required to follow the same rules about informed consent as medical and dental professionals. Section 2805-d of the New York Consolidated Laws, Public Health Law – PBH sets out the requirements of informed consent for medical, dental and podiatric procedures. The statute requires the health care professional to:

  • Tell the patient about alternatives to the suggested procedure.
  • Inform the patient of the reasonably foreseeable risks and benefits of the procedure.
  • Give the patient enough information to make a knowledgeable evaluation and decision.

Not So Fast

The law has quite a few caveats. A patient cannot recover in a malpractice action for lack of informed consent if the harm happened during an emergency treatment, procedure, or surgery, or during a non-invasive diagnostic procedure. The lack of informed consent must be what proximately caused the harm for which the patient seeks compensation. If a reasonably prudent person would still have had the procedure after the health care professional fully informed him of all required information, the patient cannot sue for malpractice on the basis of lack of informed consent.

When Informed Consent is Not Required

New York law identifies four situations in which health care professionals do not have to obtain informed consent:

  1. They do not have to disclose risks that are so obvious or commonly known that disclosure is unnecessary.
  2. The patient told the health care professional she did not want to be told particular information, or assured the health care professional she would have the procedure regardless of the risk.
  3. It was not reasonably possible to get consent either from the patient or on her behalf.
  4. The health care professional made a reasonable judgment call that, if the patient were fully informed, it could adversely affect her condition substantially.

New York State Surgical and Invasive Procedure Protocol

The New York Department of Health established a protocol for all surgical and invasive procedures. Hospitals, diagnostic and treatment centers, ambulatory surgery centers, and individual practitioners must comply with these procedures. The consent form has to include the name and detailed description of the procedure in terms the patients can understand. No acronyms or abbreviations are allowed, except to identify levels of the spine. If there is even a slight alteration to the consent form, they must redo the entire document and all parties must sign it again.

The American legal system values the doctrine of autonomy, the right of a person to choose what will happen to his body. In medical situations, this means you are allowed to choose what medical treatments you will and will not have. Truly informed consent requires that a competent patient voluntarily gives consent, without coercion, to a procedure or treatment after receiving and understanding the mandated information about the procedure.

Malpractice cases are complicated, so you should talk with a New York podiatric malpractice attorney. Our firm’s attorneys have handled hundreds of New York medical malpractice cases, and are available to discuss your case with you.  If you need advice about medical malpractice, call us to set up a free consult today.

Posted in: Medical Malpractice