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Can I Sue My Doctor for Failing to Obtain my Informed Consent?

Doctors have responsibilities to their employers, other medical professionals, and most importantly to their patients.  Doctors make mistakes, however, after all, they are human.  While some medical mistakes are easy to recognize, for example, a doctor negligently fails to diagnosis a terminal disease, there are other mistakes that are not easily identified, and in many instances, not even considered.   One example is a doctor’s failure to fully and properly inform his/her patient of diagnosis, potential treatments, benefits, risks, and alternatives of care.  A medical malpractice claim may exist against a medical professional for failing to obtain a patient’s informed consent before administering treatment or a procedure.

Understanding Informed Consent

Informed consent is a phrase used to describe the dialogue between patients and their doctors wherein the doctor obtains the patient’s permission before providing medical care.  It requires that the doctor explain, so that the patient has a clear appreciation and understanding of the patient’s medical condition(s), the doctor’s diagnosis and assessment, recommendation for treatment, and the associated benefits and risks with the treatment.  While there are variations state-to-state to the information doctors must provide to their patients, at a minimum, doctors must inform their patients regarding:

  • Diagnosis,
  • The benefits and risks of treatment,
  • The benefits and risks for refusing treatment,
  • The process and purpose of the proposed treatments, and
  • Alternatives to treatment.

One of the reasons for informed consent is that patients have the right to manage and make decisions about their medical care and are unable to do so without their doctor’s assistance.  Another reason for informed consent is that it opens a dialogue between the patient and doctor about the patient’s medical care that may not otherwise occur.

Standard of Care and Medical Malpractice Claims

The doctor-patient relationship requires that doctors owe their patients a duty of care to exercise diligence, care, and skill that is expected of a competent doctor working under the same or similar circumstances.  When a doctor breaches that duty of care, the doctor may be subject to a claim for medical malpractice.  As discussed, claims against doctors for medical malpractice are not limited to mistakes made while treating or diagnosing patients.  Included in this duty of care is the requirement that doctors provide information sufficient to obtain their patients informed consent.

Patients conducting their own due diligence into their medical care is one step in safeguarding against a doctor’s failure to provide critical information about the patient’s care and failure to obtain informed consent.  Another step is to obtain a second opinion before agreeing to treatment.  If treatment has already been provided, consult with a personal injury attorney experienced in medical malpractice to discuss whether a claim for failure to obtain informed consent exists against the medical professional.

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