As patients, it’s ultimately our responsibility to make the decision about whether or how a medical condition will be treated. However, we have to be able to give “informed consent.” That’s where the doctor’s responsibility comes in.
Doctors are obligated to give their patients thorough and honest information about their condition as well as their treatment options, any potential risks that these treatments carry and the prognosis with and without treatment. They’re required to provide this information in language that patients can understand.
If they don’t provide this information, a patient cannot give informed consent, and any treatment (other than emergency treatment) given may be considered unauthorized and potentially grounds for a medical malpractice suit. Depending on the situation, the doctor could even face criminal charges.
To succeed in a malpractice case involving lack of informed consent for a procedure or treatment, a plaintiff typically needs to show that:
- The risks and/or outcome weren’t disclosed.
- If they’d known about these, they wouldn’t have consented to the procedure or treatment.
- They suffered harm because of the procedure or treatment.
Another issue that may need to be determined is whether the patient was able to give informed consent. For examples, parents or guardians are typically the only ones who can give informed consent on behalf of a minor. Likewise, an elderly person suffering from dementia likely wouldn’t be able to give informed consent. People suffering from some types of mental illness or intellectual disabilities may not be able to give informed consent.
If a loved one was harmed by a treatment or procedure for which they or the appropriate caregiver did not provide informed consent, it’s wise to seek legal guidance. An experienced attorney can determine whether you have a case and, if so, help you seek compensation and justice.