Patients need to give informed consent for a medical procedure prior to receiving it. The doctor must describe the procedure on a waiver or release form and inform the patient of any potential risks and complications that may happen before the patient signs it. If risks are not fully disclosed on a release form or a doctor is found negligent, this could be grounds for a medical malpractice claim.
What happens if risks are not fully disclosed?
Signing a release form confirms that you understand the risks and complications involved in undergoing the procedure and you agree not to hold the doctor or hospital responsible for injuries or damages you may suffer.
A patient who suffers a complication from the procedure that was not described on the form when it should have been may be able to file a medical malpractice claim. If a complication is not properly described or the chances of it occurring are underestimated, the patient could also claim that he or she would not have gone through with the procedure if the risks were fully disclosed.
A doctor mistake, like failing to fully disclose risks on a release form, can give rise to a medical malpractice claim. The medical malpractice attorneys at Hastings Law Firm in Houston, Texas, have years of experience in dealing with medical malpractice cases and can determine if you have a valid claim or not.
What risks must be disclosed?
A doctor obviously cannot state every single risk but only those considered to be important. What is considered important? A standard that most states in the U.S. use is whether other competent doctors would have informed a patient of a particular risk.
A second standard they use is whether a normal patient with the same medical history and risks as the plaintiff would have undergone the procedure if the risks were fully disclosed.
If a release form is properly completed and a patient has been fully informed about all the risks and complications, this generally bars the patient from suing the doctor. If a patient was mentally competent to sign the form and was not pressured into signing it, the patient cannot accuse the doctor of not obtaining informed consent.
Exceptions to informed consent
In a medical emergency, a doctor has no time to describe all the risks and must act quickly. A patient cannot sue for lack of informed consent in such a situation.
If a patient is so distressed that he or she may refuse treatment, the doctor may not have to get informed consent. However, the doctor must be able to offer a very good reason for not getting it.
If a doctor encounters a serious medical problem while in the course of performing a procedure, it is not necessary to obtain informed consent from a patient before dealing with it. For example, if he or she may be working on a heart valve and realize that another valve also needs attention.
What happens if a doctor is negligent?
A release form will not protect a doctor who is negligent. A doctor’s actions are regarded as negligent if harm to the patient would not have happened under the care of a reasonable health care provider with the same education, training and experience. Operating on the wrong body part or leaving a surgical instrument in a patient’s body is gross negligence.
Medical malpractice law can be complicated and the rules vary from state to state. It is helpful to get advice from an experienced medical malpractice attorney familiar with the state laws.