Informed consent as a basis for medical malpractice claims

On Behalf of | Feb 5, 2015 | Doctor Errors

Surgery is perhaps the most deeply personal involvement that anyone can have with the health care system. It entails allowing someone, with whom you just became acquainted due to injury or illness, to operate on you. It represents a major act of confidence and trust. At times, it may also involve a leap of faith.

It follows, therefore, that before you allow a surgeon to proceed with an operation you should not only be fully informed of the nature of the procedure, including its possible risks, but you should also properly consent to having it done. This advance information and permission is well-known in the medical profession in South Carolina and elsewhere as “informed consent.”

Ordinarily, informed consent is a routine matter, especially for minor surgeries. But occasionally, the procedure can break down for a variety of reasons: Patients may not be able to fully comprehend what they are being told, and the surgeon’s greater familiarity with the procedure may make him or her susceptible to overestimating the patient’s comprehension level.

Other possible sources of confusion can arise from patients not being informed about matters such as:

  • A substitution of one surgeon for another without the patient’s awareness of the change, or the participation of another surgeon without the patient’s knowledge and consent
  • The surgeon discovers and treats another medical condition during surgery without the patient having given consent
  • The surgeon negligently omits to mention a possible risk involved with a procedure

In any of these situations, as well as others, if the physician fails to inform the patient of a material risk, and if the patient would not have consented to the procedure had he or she known of the risk, then a medical malpractice cause of action may ensue for lack of informed consent.

Informed consent can be a difficult matter to properly assess. Generally, a surgeon and the facility who which he or she works will contest any claim of a lack of consent. It is important for anyone who believes that a lack of informed consent was the cause of an injury to consult with an attorney to assist in the analysis and preparation of any ensuing legal claim.


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