Types of Medical Malpractice Claims: Lack of Informed Consent

  • Posted on: Mar 24 2020
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What are the grounds for a medical malpractice case based on a lack of informed consent?

As a patient, you deserve to know the risks associated with any medical procedure you may undergo.  Informed consent means that before a physician performs a procedure on a patient, he or she must first advise the patient of the risks which a reasonably prudent physician would have disclosed.  Should you suffer harm during the procedure and you were not informed of the possibility of the injury or illness, then you may have a viable medical malpractice action. Our New York, New York medical malpractice lawyers discuss the grounds for a medical malpractice case based on a lack of informed consent below.

When is Informed Consent Required?

In the state of New York, doctors are required to discuss the risks, benefits, and any alternatives to a procedure they intend to perform.  After discussing these risks, the patient must agree to undergo the procedure, usually in writing. A doctor must obtain informed consent before performing non-emergency treatment or a diagnostic procedure.

Grounds for a Medical Malpractice Claim Based on Lack of Informed Consent 

A lack of informed consent in and of itself is not grounds for medical malpractice.  To have a viable medical malpractice claim, you need to have suffered harm. The physician needs to have failed to obtain informed consent and the patient needs to have suffered harm due to the recognized potential complications of the procedure.

There are certain circumstances in which a physician will be excused from obtaining informed consent.  If the physician can demonstrate an emergency situation existed, the case could be dismissed. Alternatively, a physician does not have to disclose risks that are too commonly known as to require disclosure.  Further, the physician might have a viable defense against a medical malpractice action based on informed consent if the patient told the doctor that he or she did not want information on the risk and intended to undergo the procedure regardless of the risks.

If you have been injured during a medical procedure and believe you were not adequately informed of the risks, you should consult with a medical malpractice attorney right away.  Your lawyer will investigate the facts of the case and determine whether you have a potential claim against the physician who failed to fully inform you of the potential complications associated with the procedure that caused you harm. 

Posted in: Medical Malpractice