What Is Informed Consent?
November 15, 2021
In simplest terms, informed consent is how patients give permission for medical evaluations and treatments. Before more involved procedures can take place, a health care provider must get the patient’s agreement before moving forward. Throughout your lifetime, you may have been presented with and signed many informed consent forms, often without dwelling too much on it. This can seem more like a formality at times, but it is certainly not something that should be taken lightly. Almost every treatment or procedure comes with at least some amount of risk, and doctors are required to fully inform their patients about them when the risks are significant.
When the patient is a minor child, the informed consent is provided by a parent or guardian, unless the child is an emancipated minor or when state laws allow the minor authority to give consent. Health care providers may rely on verbal consents for minor procedures such as filling a tooth; there is a degree of understood consent in the field of medical care. More invasive evaluations, such as pelvic examinations, do not usually start with informed consent forms, but patients have the right to ask as many questions as they need. Invasive procedures and therapies with higher risk are subject to formal consent processes.
Are There Other Exceptions to Required Informed Consent?
The main exception to requiring informed consent forms is in the case of emergency medical procedures or life-saving treatments. When either must be performed immediately, doctors are unable to go over all the risks with a patient, guardian, or their family members. It is important to note that informed consent is a medical and legal term. Therefore, if a provider does not obtain a patient’s informed consent and that patient ends up getting injured from the treatment or procedure, that patient might very well choose to sue for medical malpractice.
Exceptions can also be made for emotionally fragile patients. This is when a patient is so distressed that they will refuse a necessary treatment or procedure. The necessary procedure could be needed to save a patient’s life, so the doctor may have to rely on their discretion and be more vague about the associated risks. Disclosing a lot of details can lead to heightened anxiety or panic attacks in patients, and these situations can make things very difficult. However, if the doctor does not share all this information, they will have to show a clear reason why they did so.
What Is in an Informed Consent Form?
In general, these forms include the name of the condition as well as the proposed treatment or procedures. They should also include all the risks and benefits, as well as risks and benefits for other options. An informed consent form must specify the consequences of not getting the treatment or procedure as well. It is the patient or caregiver’s responsibility to read over these forms, and to ask as many questions as they need. Simply signing without looking it over is ill advised, since there could be considerable risks involved.
Patients can advocate for themselves by asking about their concerns before signing. It is a good idea to write questions down ahead of time, to help remember what to ask when the time comes. Here are few common questions that patients can ask:
- What will happen if I do not have this procedure?
- Why is this operation necessary?
- Are there any alternative treatments for my condition?
- What are the risks and percentages?
- How is this procedure carried out, and how long does it take?
- Who will be assisting you?
- How much time will I need to spend in the hospital?
- How soon can I expect to feel better?
- When can I return to work?
- Are there any side effects or symptoms to look for during treatment?
Every case is different, so your questions could vary. In any case, health care providers expect to be asked a lot of questions and should accommodate your inquiries. Do not feel uncomfortable about asking many questions, since they are used to providing answers and even more importantly, it is your health that is at stake. If the doctor is unwilling to answer all your questions or you are not comfortable with their responses, it may be best to seek out a second opinion or another provider.
Signing Consent Forms
Informed consent forms are used to protect patients and provide a necessary communication process between health care providers and the people they treat. It is a show of proof that the provider has given the patient information about the condition and treatment options, and that it was received and reviewed. A verbal consent is not usually recommended for involved procedures, because there will be no record of it. Instead, health care providers offer written documents or do it through new technologies such as audio files, videos, and interactive computer modules.
When the form is signed, this shows that the patient has received and understood all the information about the treatment or procedure and options, and that they had the opportunity to ask questions. The signature means that the patient agrees to the have the treatment or procedure undertaken. If you are hesitant about signing or only want to accept part of a treatment plan, you are well within your rights to do so. Besides that, even if you change your mind after signing, you are not legally bound to have any treatment.
There is also the option of shared decision making. This is part of informed consent, and in these situations patients and providers work together to decide about tests, treatments, and procedures. In the beginning, the provider presents the patient with all the information about their condition, along with all the advantages and disadvantages of the various treatment options. The patient then discusses their preferences and opinions, and the patient and provider work together to arrive at the best solutions, keeping the patient’s goals in mind.
How Do Lack of Informed Consent Cases Work?
As a guideline, informed consent claims focus on showing that a patient would have not agreed to the treatment or procedure had they been aware of the risk that ended up harming them. However, doctors are not required to share every possible risk involved. In these cases, courts will attempt to determine if a provider should have disclosed a particular risk using standards such as the ones below. Since the first scenario involves a doctor’s perspective, it usually requires expert testimony. This is less likely in the second scenario because it works from a patient’s viewpoint.
- Would a competent doctor have informed the patient of the risk? Was it significant and somewhat likely to occur?
- Would a reasonable patient in the same position as the plaintiff have decided to forego the procedure/treatment if they knew about the risk?
There is also the possibility of a provider performing a different procedure than the one explained in the informed consent form. When this unfortunate kind of event happens, the patient might be able to sue for malpractice. In essence, the patient had a lack of informed consent to the procedure performed. Many times, however, a doctor has to perform another procedure because of a serious problem that they encounter during a procedure. The additional or different procedure must be an actual mistake, such as removing the wrong lung.
Baltimore Medical Malpractice Lawyers at LeViness, Tolzman & Hamilton Help Injured Patients with Medical Malpractice Cases
If you or a loved one has been injured because of the actions of a health care professional, reach out to the Baltimore medical malpractice lawyers at LeViness, Tolzman & Hamilton. Medical malpractice laws can be complex, and they vary from state to state, but our experienced legal team can determine if you have a strong case. We will fight to get you the compensation you deserve. To schedule a free, confidential consultation, call us today at 800-547-4LAW (4529) or contact us online.
Our offices are conveniently located in Baltimore, Columbia, Glen Burnie, and Prince George’s County, where we represent victims throughout Maryland, including those in Anne Arundel County, Carroll County, Harford County, Howard County, Montgomery County, Prince George’s County, Queen Anne’s County, Maryland’s Western Counties, Southern Maryland and the Eastern Shore, as well as the communities of Catonsville, Essex, Halethorpe, Middle River, Rosedale, Gwynn Oak, Brooklandville, Dundalk, Pikesville, Parkville, Nottingham, Windsor Mill, Lutherville, Timonium, Sparrows Point, Ridgewood, and Elkridge.
