Informed consent claims are frequently an element of a medical malpractice action. Prior to rendering medical treatment to a patient a health care provider should obtain the informed consent of the patient. The informed consent means as the term implies, that the patient has been advised as to the nature of the procedure and the risk associated with the procedure. In most medical malpractice claims the need for that disclosure and the extent of the disclosure is to be established through expert medical testimony. For instance, in the delivery of a child if the doctor anticipates there may be a need for a use of forceps in the delivery of the child then that is a fact that should be disclosed to the mother along with disclosing the possible bad consequences from the use of forceps. It is conceivable that in certain circumstances the necessity of disclosure is so obvious that expert testimony will not be necessary to establish that fact.
The mere fact that a patient has signed an informed consent form or what is frequently just called a consent form does not mean that the patient has consented to any subsequent negligence on the part of the health care provider. Indeed, in most instances where there is no issue of consent or informed consent then the existence of the consent form is simply not relevant and should not even be presented as evidence during the course of the trial. Frequently the defense will attempt to rely upon the consent form as a basis for showing that the patient understood the risks and agreed to assume those risks. That is not the purpose of an informed consent form. For instance, if during the course of surgery the surgeon perforates the bladder, the fact that that risk was disclosed in the consent form does not insulate the physician from liability. Indeed, the existence of that consent form is not even relevant unless there is an issue in the case of informed consent.
If you believe you have been injured by a health care provider and that the risks of the procedure were not properly disclosed to you, contact us.
