Informed consent. If you have to undergo a risky medical procedure, what
does your doctor need to discuss with you prior to performing the procedure.
What if something goes wrong with the procedure ? What if that something
that goes wrong was exactly one of the risks that the doctor should have
discussed with you ? These are issues that are involved in a medical malpractice
case where there is a lack of informed consent and that is what I discuss today.
If you are a patient and you need to undergo surgery, an invasive procedure
or take medication a doctor has a duty to provide certain information
to you about what the doctor proposes to do, the alternatives to the operation,
procedure or medication and the reasonably foreseeable risks. The doctor
has a duty to explain, in words that are understandable to you, all the
facts that a reasonable medical practitioner would provide so that when
the you, as a patient, consent, you are aware of several things. The issues
of which you need to be aware before undergoing the surgery, procedure
or taking the medication are: (1) your existing physical condition; (2)
the purposes and advantages of the operation, procedure, or medication;
(3) the reasonably foreseeable risks to your health or life that the operation,
procedure or medication may impose; (4) the risks involved to you if there
is no operation, procedure or use of the medication; and (5) the available
alternatives and the risks and advantages of those alternatives.
In each of these steps, a jury is going to be asked if you had the appropriate
information, would you still undergo the procedure, surgery or take the
medication. In considering this issue, a jury is asked to only consider
your condition at the time that you consented to the surgery, procedure
or medication and the facts and circumstances that existed at the time
and not the events that occurred or knowledge that was obtained at a later
time. A jury will also have to consider whether the surgery, operation
or medication was a substantial factor in causing the injury to you or
your family member before it finds a doctor or other medical practitioner
liable for malpractice. So how do you get to the point where a jury can
find in your favor ?
You as a plaintiff in a medical malpractice action need to have expert
testimony to establish your claim against another medical professional.
What does this mean ? It means that you will need to have a doctor testify
on your behalf that what took place with your original doctor deviated
from the standard of care in the profession. Often times, you as a plaintiff
are able to acquire this expert testimony from your second doctor who
has been required to fix the things that your first doctor botched.
You also need to keep in mind that the informed consent doctrine does not
apply to emergency situations. The lack of informed consent doctrine also
applies to an infant in utero if a doctor did not obtain the informed
consent of the mother. Public Health Law § 2805-d is the statute
that addresses informed consent in New York and Public Health Law §
2503 requires a physician or nurse mid-wife attending a birth to inform
an expectant mother, in advance of the birth, of the drugs to be used
during pregnancy and both during the pregnancy and at the birth of a child
and of the possible side effects of the drugs on the child and the mother.
With all this information in mind, I hope you or your family members do
not need to be called a plaintiff, ever. However, it happens and that
is why there are attorneys, insurance companies and courts. If you do
find yourself as the victim of medical malpractice or you think you may
have a situation that involves a lack of informed consent, give us a call
at 1.888.900.6204 and schedule a consultation. We will be happy to provide
you with a free consultation and a free case evaluation and we have evening
and weekend appointments available if needed. Give us a call, put us to
work and we will fight for you.