Although we may not realize it, we must give informed consent before accepting treatment or a medical procedure. Doctors are obligated to thoroughly inform their patients about the risks involved in a medical treatment or procedure before it is performed. Informed consent is the medical and legal term used to describe this obligation. Without informed consent, a physician is opening himself up to be sued for medical malpractice.
The Ethical guidelines of informed consent are:
1. The person must be mentally competent.
2. All relevant procedural facts must be disclosed.
3. The person must understand the information that is disclosed.
4. The decision to undergo the procedure or treatment must be voluntary.
5. The person must give consent.
What is Informed Consent?
Since most medical procedures involve some risks, the doctor is obligated to communicate these risks to the patient so they can make an informed decision about undergoing the procedure. Essentially, informed consent is the process of providing essential information about a procedure in exchange for the patient’s agreement to receive said treatment. The agreement can be signed as part of the informed consent but it is not complete without verbal communication and a basic understanding by the patient.
Informed consent is one of the key components involved in Medical Malpractice law because the patient may have forgone the procedure had they known the risks.
What Type of Risks Must Be Disclosed?
Although a doctor doesn’t need to tell a prospective patient about every possible small risk, they are obligated to tell them about the big ones. The question is how do you determine which risks are vital to communicate?
Two common standards are used to determine whether the risk should have been communicated.
Some states ask whether other reasonable doctors would have disclosed the risk. In a medical malpractice case this is proven by bringing a medical expert to testify that a competent doctor would have informed the patient of a particular risk because it was statistically likely to happen.
Other states ask whether a normal patient with the same medical history and conditions would have chosen not to receive the procedure had they known about the risk. The court is looking to see if the doctor informed the patient of reasonable alternative treatments before proceeding with the problem treatment. A medical expert is not necessarily called in these cases.
Exceptions to the rule of Informed Consent
In an emergency there is often not time to get informed consent from the patient. A doctor is entitled to make a decision on behalf of the patient to save their life.
If a patient is deemed too emotionally fragile to handle the information about possible risks, a doctor is entitled to be vague in their description. The doctor must be able to clearly state why they withheld information if they are sued for medical malpractice.
Note that if a patient gives informed consent to a heart procedure but during the operation the doctor discovers a different problem, they may go ahead and handle the second problem without informed consent.
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