The Importance of Informed Consent: A Medical Malpractice Lawyer’s Explanation for Malpractice Cases

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As a patient in the United States, you have rights. You have the right, for example, to receive competent care from your medical team and to be treated with dignity and respect at all times. You also have the right to make an informed decision regarding what care and treatment you want to receive.

No doctor or healthcare professional can force you into accepting treatment you do not want to receive. This right is secured by the right to give or withhold informed consent. Here is what you need to know about this important right.

Informed Consent in the Medical Realm Explained

Before your doctor can perform any operation on you or start any treatment plan, they must first receive your informed consent to that treatment. It does not matter how beneficial the course of treatment is likely to be or your reasons for agreeing or refusing to give your informed consent.

With very few exceptions, if your doctor does not have your informed consent to a course of treatment, they may not proceed with that treatment. You should speak with a medical malpractice lawyer about your options if they do.

Your Consent Must Be Informed

Informed consent means that any consent you give or withhold must be based on sufficient information so that you can make the best decision for yourself. Having sufficient information means that your medical team provides you with the following:

  • A detailed description of the proposed procedure or treatment plan
  • An explanation of the steps involved in the course of treatment being considered
  • A description of the intended benefits of the treatment
  • A list of the possible risks, side effects, and complications of the treatment plan
  • Honest answers to any questions you might have about the treatment plan

Only after you have received the information you believe you need to make the best decision for you can you be asked whether you consent to the course of treatment.

Your Consent Must Be Freely Given

Consent is not consent if you do not freely give it to your medical team. If your doctor, nurse, or anyone else threatens or unduly pressures you into accepting treatment, then they are providing treatment to you that you did not consent to receive.

This does not mean that your medical team cannot attempt to persuade or reason with you to obtain your consent if you hesitate to accept treatment. They can emphasize the benefits to you and downplay the risk of complications, for example, as long as they do not provide false information.

But if you persist in declining treatment, they must respect that wish and not proceed with treatment.

Exceptions to Informed Consent Before Treatment

There are two major exceptions to the requirement to obtain informed consent. First, if you are unconscious or not communicating, and you have no advance care directive in place, doctors can provide you with emergency life-saving treatment that is reasonable under the circumstances.

The law permits this because it assumes that, absent evidence to the contrary, people would generally want care if such care would save their lives in an emergency.

Secondly, parents can generally provide informed consent to treatment for their minor children. For example, if a parent makes an informed decision to provide their child with braces, that decision overrides any minor child’s choice.

How a California Medical Malpractice Lawyer Determines Informed Consent

Because any reasonable medical professional would not provide care without first obtaining your informed consent, any failure to obtain such consent prior to starting a course of treatment could be considered malpractice. For instance, it is medical malpractice to start a course of treatment if the doctor did not:

  • Tell you about the procedure, its risks, and its potential benefits
  • Give you a reasonable opportunity to consider your treatment options
  • Allow you to seek a second opinion
  • Permit you to consult with a family member or trusted friend before deciding

If you express that you did not understand a procedure, your medical malpractice lawyer will examine whether you truly provided the doctor with informed consent.

Even if a procedure is successful, you may have a cause of action and be entitled to compensation if a procedure was conducted without you providing informed consent to that procedure.

A Los Angeles Medical Malpractice Lawyer Can Guide You

If you feel that you did not give informed consent to receive a medical procedure or treatment, you must speak to a qualified medical malpractice lawyer right away.

At The Trial Law Offices of Bradley I. Kramer, M.D., Esq., our fiercely competitive team fights hard to protect victims across California and the nation and secure the compensation they deserve. Contact us to schedule a consultation today.

Questions? Contact us