Informed Consent and Medical Malpractice

August 24, 2021 | Attorney, Matthew Dolman
Informed Consent and Medical Malpractice

Doctors Need Patient's Informed Consent or Risk Medical Malpractice

Medical treatment can sometimes come with the weighing of risks versus benefits. Things such as surgery and certain medications may be able to treat certain ailments yet they also can come with side effects or risks of complication. There are many times when this risk versus reward kind of treatment is the only option available to a patient and they must deliberate on what exactly they want to authorize a doctor to do. In order to make the best decision, a patient needs to be properly informed before they can offer a medical professional consent to perform a certain treatment.  This is called informed consent and without this, a doctor that provides certain treatments to a patient could potentially be found guilty of medical malpractice.

Medical Malpractice Lawsuits Due to Lack of Informed Consent

Every patient has the right to know what a doctor intends to do when it comes to their treatment as well as any risks such a treatment might entail. This is a universal right that pertains to every medical patient and that all doctors and healthcare providers must observe. When a patient is not informed of a treatment's benefits and risks, they could unknowingly undergo a treatment that could result in additional injury leaving them even worse for wear. When a patient's lack of informed consent before a medical treatment results in an injury then the medical professional that provided that treatment could be guilty of medical malpractice. This is because not attaining informed consent before treatment is considered negligent. Medical malpractice can be defined as when a medical professional such as a doctor injures their patient through action or inaction that deviates from the professional standard of care in their field. Informed consent is, of course, a universal norm among medical professionals whether they are a small town doctor or one of the top neurosurgeons in the world. Patients injured due to risks in their treatment that they were not made aware of are entitled to legal action against those responsible for such negligence. They can seek compensation for these injuries with a medical malpractice lawsuit.

What is Considered Informed Consent?

Informed consent is defined as the process by which a patient learns about and understands the benefits, purpose, and potential risks of medical or surgical intervention, including clinical trials, and then agrees to receive the treatment or participate in the trial. In simplest terms, patients must give permission to be touched, to have treatment, or to undergo an evaluation. This permission can only be given if they understand the risks and benefits of the choice they are making. This is informed consent.  Informed consent typically requires that the patient or responsible party sign a statement confirming that they understand the risks and benefits of the procedure or treatment. The process of informed consent will generally include the following steps:
  • You are told (or get information in some way) about the possible risks and benefits of the treatment.
  • You are told about the risks and benefits of other options, including not getting treatment.
  • You have the chance to ask questions and get them answered to your satisfaction.
  • You have had time (if needed) to discuss the plan with family or advisors.
  • You are able to use the information to make a decision that you think is in your own best interest.
  • You share your decision with your doctor or treatment team.
After this process, a patient will usually be given some kind of paper consent form or in rarer cases a digital form to sign so that a medical provider can have on paper that you consent to treatment. As with all signed paperwork, it is important to read the fine print. An informed consent form can sometimes be worded in a way so that signing it gives consent to not just a specific treatment but any a healthcare provider deems necessary. In the event that you withhold consent, you will likely have to sign an informed refusal form confirming that you have been informed of the risks and benefits of a procedure and are deciding to decline against medical advisory from your attending physician.

When is Informed Consent Needed?

State law requires that all patients receive information about the benefits and risks of medical procedures based on reasonableness. Would a reasonable patient want to know about treatment before making a decision? The attending physician is responsible for conveying this information prior to performing the procedure. Informed consent is most often obtained before:
  • Surgical procedures
  • Cancer treatments
  • Some bloodwork
  • Clinical trials
  • Blood transfusions
  • Anesthesia
  • Biopsies and other advanced medical tests
  • Vaccinations

When is Informed Consent Not Needed?

A physician does not always need informed consent from a patient in order to perform certain treatments. There are a few exceptions where foregoing a patient's informed consent is considered the best possible route in that particular situation.
Routine Medical Treatment
The most basic of routine medical procedures are considered an exception from the rule of informed consent. The taking of basic measurements of vital signs and other non-invasive tests have virtually no risk to the patient and are part of the most basic medical procedure so there is no need for signing informed consent forms in those circumstances.
Emergency Situations
In many emergency situations, a physician may have to forego informed consent in the interest of saving their patient's life. An emergency could call for treatment to be implemented as soon as possible with the difference between life and death being a matter of seconds.
Patients Who Cannot Give Informed Consent
Some patients may not be able to give informed consent either because they are unresponsive, minors, or mentally handicapped. In this event, a parent or guardian is responsible for giving informed consent on the patient's behalf.

What is the Difference Between Informed Consent and Implied Consent?

Implied consent is a type of informed consent. This type of consent is not written down, but consent is obtained by the patient's actions. Going to see a physician when you are sick is a form of implied consent. By seeking treatment, you are giving consent to obtain an evaluation. This type of consent is less formal and does not need legal recordings to be valid.

Contact a Florida Medical Malpractice Lawyer

People who have been injured by the negligence of a medical practitioner are regularly entitled to substantial monetary compensation. In numerous cases, the difficulties associated with medical malpractice can be tremendously serious, so it's vital that victims ensure that their legal rights are sheltered by retaining an advocate who has a history of success litigating medical malpractice claims. The attorneys of the Dolman Law Group Accident Injury Lawyers, PA are accomplished medical malpractice lawyers who know how to acquire the compensation our clients deserve. If you or a loved one have been injured because of a medical professional's malpractice then do not hesitate to contact Dolman Law Group Accident Injury Lawyers, PA about a free consultation on your claim. Our lawyers are ready to discuss the details of your case and determine what legal options are available to you. When you hire Dolman Law Group Accident Injury Lawyers, PA as your legal representation you guarantee that your right to legal compensation for your damages is fought for aggressively by experienced lawyers. To schedule a free consultation and case evaluation with a Clearwater bike accident lawyer, please call us today at 727-451-6900 or contact us online. Dolman Law Group Accident Injury Lawyers, PA 800 North Belcher Road Clearwater, FL 33765 727-451-6900  


Matthew Dolman

Personal Injury Lawyer

This article was written and reviewed by Matthew Dolman. Matt has been a practicing civil trial, personal injury, products liability, and mass tort lawyer since 2004. He has successfully fought for more than 11,000 injured clients and acted as lead counsel in more than 1,000 lawsuits. Always on the cutting edge of personal injury law, Matt is actively engaged in complex legal matters, including Suboxone, AFFF, and Ozempic lawsuits.  Matt is a lifetime member of the Million Dollar Advocates Forum and Multi-Million Dollar Advocates Forum for resolving individual cases in excess of $1 million and $2 million, respectively. He has also been selected by his colleagues as a Florida Superlawyer and as a member of Florida’s Legal Elite on multiple occasions. Further, Matt has been quoted in the media numerous times and is a sought-after speaker on a variety of legal issues and topics.

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