Medical Malpractice and Informed Consent By Sean Burke on April 30, 2016

When we, as patients, turn to trained, licensed medical professionals for care, we expect that we can trust their ability to render that care. At the very least, we have the right to expect care of a reasonable standard. Nevertheless, except in the case of an emergency, physicians and surgeons are obligated to obtain our informed consent before administering treatment. If they fail to do so, no matter how experienced, trustworthy, or skilled they might be, they are setting themselves up for a medical malpractice lawsuit if any injuries occur as a result of the treatment they provide.

Personal injury attorney Sean M. Burke has extensive experience and success in handling cases involving medical malpractice and informed consent in Orange County, CA. If you or a member of your family has been harmed by a physician or surgeon who failed to obtain your informed consent, or if you tragically lost a family member after such an act of medical negligence, we can help you pursue the justice you deserve. Simply contact the Law Offices of Sean M. Burke to arrange for your medical malpractice case evaluation today.

What Is Informed Consent?

Every medical procedure or treatment entails some degree of risk, however slight. It is the responsibility of the doctor to disclose the most important risks associated with the procedure or treatment, along with other important information, to the patient before the patient commits to undergoing the procedure or receiving the treatment.

The standard of what is considered “important” in this case is determined according to two criteria:

Would a reasonably competent doctor in the same circumstances have disclosed the risk or piece of information?
If provided with that risk or piece of information, would a reasonable person have possibly made a different decision as to whether to undergo the procedure or treatment?

If the answer to these two questions is “yes,” and the doctor failed to disclose the risk or other piece of information, then that doctor did not properly obtain informed consent.

Is Informed Consent Always Required?

Informed consent is not always required. In cases of emergency, when there is no time to explain the risks involved with a procedure, a doctor is not under obligation to obtain informed consent from the patient. A patient may not, therefore, file a medical malpractice claim on the grounds that the doctor failed to obtain informed consent (although a medical malpractice claim may be filed on other grounds).

There are other instances in which information may be withheld from the patient, such as when the patient may be too emotionally fragile or otherwise frail to receive certain types of information; however, the doctor must be able to provide strong evidence that he or she acted in the patient’s absolute best interests in not obtaining informed consent before proceeding with treatment.