Informed Consent. What You Need To Know Before Risky Medical Procedures

Posted By Michael R. Varble || 16-Jan-2014

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.

Categories: Personal Injury

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