When you hear the phrase "medical malpractice," you usually think of a doctor who has made some terrible medical mistake, such as misdiagnosing a disease or leaving a sponge in a patient during surgery. However, other kinds of things also give rise to what Texas calls a health-care liability claim, including the failure of a doctor to get a patient's informed consent for treatment.
The idea behind informed consent is that a patient has the right to make decisions about what kind of medical treatment he or she will agree to receive. In order for a patient's consent to be considered "informed," the doctor must tell the patient of the benefits and risks presented by a particular course of treatment, which allows the patient to have enough information to make an informed decision.
Because patients do not have medical degrees, informed consent does not require doctors to tell their patients every technical medical detail. It does require them to tell their patients about any fact that would affect a reasonable person's decision to accept or decline a particular treatment.
Generally, this means that the doctor should tell the patient:
(1) the diagnosis;
(2) the nature and purpose of the treatment being proposed;
(3) the chances of the treatment's success;
(4) the risks of the treatment;
(5) the benefits of the treatment;
(6) alternative treatments that might be available (and their risks and benefits); and
(7) the risks and benefits of doing nothing at all.
Patients, in turn, should listen carefully to what they are told, ask questions if they do not understand the doctor's explanation, and make sure that they know what it is they are agreeing to.
In Texas, a patient is often asked to give his or her informed consent by signing a preprinted form setting forth all of this information. This form exists for many of the more common treatments and procedures (particularly surgical procedures), so that doctors can be sure that they have not left anything out.
In other cases involving less common kinds of treatments and procedures, there is no preprinted form, and the doctor must sit down with the patient and provide the information that is needed to make an informed decision. Because a patient has a right to consent to medical treatment, a doctor who fails to get a patient's informed consent may be sued. Legally, the doctor may be liable to the patient for battery, even if the treatment is successful.
Sometimes a patient is unable to give informed consent. For example, a person who has been in a bad car accident and who is unconscious cannot tell the doctors in the emergency room that it is okay to administer the treatment that is needed. Other patients may not be able to give their informed consent even if they are conscious: Small children or people with mental problems may be unable to fully understand what the doctor is telling them and therefore cannot give their consent. In cases such as these, the law still requires informed consent, but it comes from a different source. In cases involving minors or those with mental problems, the doctors can get the informed consent of the patient's parent or guardian, who consents on his or her behalf.
Where an adult is unable to give informed consent because of a medical condition, the law implies consent to all treatments to which a reasonable person would have consented had he or she been able to do so. This provision enables ER doctors to perform emergency surgery to save the life of the unconscious accident victim.
Although informed consent cases are less likely to make the evening news than is the case of the surgeon who has amputated the wrong leg, they are just as serious as any other health-care liability case. If you believe that you have been the victim of a treatment that was provided without your informed consent, contact our office and we will be happy to discuss the matter with you.
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