Today, we’re fortunate to have a range of medical treatment options and medications for many diseases, conditions and injuries. Often, our outcomes are better than they may have been a generation earlier, and new advancements continue to refine medical care and treatment.
But with more decisions to make—and more treatment approaches on the table—it’s incredibly important that we understand the risks of each potential approach. After all, every patient has different goals and priorities when it comes to pain management, mobility, quality of life or even life expectancy.
Sometimes though, patients don’t get a chance to express their own wishes or make their own informed choices. When physicians or a health care provider fails to properly educate a patient about known risks or alternative courses of treatment after a diagnoses, the patient loses their voice. In some cases, this can rise to the level of medical malpractice, meaning the physician failed to disclose information necessary for informed consent which resulted in an injured patient.
What is medical malpractice?
While medical malpractice typically brings to mind issues like surgical or medication errors, incorrect diagnostic testing, misdiagnosis, or negligent patient supervision, it can also extend to a health care provider’s duty to educate patients regarding medical care.
After a poor outcome, it can be challenging for patients or family members to realize that their choice wasn’t a choice at all—that they did not have the information needed to make a decision on their medical care that was in line with their values.
While we’ll discuss more about informed consent below, it’s important to first understand that any suspected case of medical negligence requires thorough documentation and swift action. Here’s why:
- In Georgia, patients and families have two years to take legal action and file a medical malpractice lawsuit after a suspected incident of medical malpractice. Claims that occur outside the statute of limitations won’t make it to court, no matter how compelling the evidence. If the personal injury didn’t show up immediately, this timeline can sometime extend to five years.
- Medical malpractice claims are often challenging to prove, especially when trying to prove that a health care provider failed to properly educate a patient and didn’t meet the duty of care. Retain and gather as much related information as possible, including medical records, doctor’s notes, medical bills and medical expenses, along with other relevant documents.
What is informed consent?
Ideally, patients are able make medical decisions aligned with their own values and wishes. To do so, however, they need a thorough understanding of the risks and rewards related to the particular procedure, medication or treatment protocol under consideration. Healthcare professionals have a legal obligation to help develop that understanding, educating patients about their condition, its treatment options and known risks.
According to the AMA Journal of Ethics, health care providers typically need to disclose:
- The condition being treated
- What a proposed treatment will entail
- What the potential results of that treatment could be
- What other treatment options could be considered
- What risks or complications could arise from a particular treatment
- Whether the physician has any economic or personal interests that could affect judgement
- Whether any diagnostic tests could rule out a condition
- Any personalized information related to the patient—for example, considering risks to vision for a pilot or risks to mobility for an athlete
Additionally, health care providers are required to disclose risks when patients choose not to seek treatment. If a patient opts out of a recommended cancer screening, for example, the health care provider might need to disclose the risk involved in missing early detection resulting in a delayed diagnosis.
There are two exceptions to informed consent:
- When the patient is unconscious and cannot consent
- When the benefit of treatment outweighs potential harm
Exceptions often come into play in an emergency situation, like a car crash or traumatic injury where the patient requires life-saving intervention. Still, even in an emergency, the physician still needs to seek consent as soon as it’s possible.
How to identify informed consent medical malpractice
Unsurprisingly, it can be challenging to prove that a medical professional did not properly educate a patient before a procedure or course of treatment.
Usually, healthcare professionals are aware of their potential medical malpractice legal exposure and have patients sign consent forms before:
- Surgeries
- Endoscopies
- Biopsies
- Cancer treatment
- Some types of blood tests
- Higher-risk procedures
- Vaccines
Of course, it takes more than a handout to understand patient risk. Patients need the chance to ask questions, read materials in their own language and understand how treatment could affect them individually—for example, how potential risks could affect fertility, family plans or occupations.
The failure to provide informed consent can rise to the level of a medical malpractice suit when:
- The physician didn’t meet the medical standard of care—essentially, other doctors would have likely disclosed the risk.
- The patient was harmed by the treatment or procedure.
If the injury falls within the statute of limitations, a medical malpractice attorney will then look to gather information relevant to the case. This might include unsigned consent forms, a witness account of the physician’s failure to inform the patient of risks, proof of injuries and an expert testimony connecting the injuries to the procedure.
Medical malpractice claims and consent forms
While physicians typically try to protect against medical malpractice claims with patient consent forms, an experienced medical malpractice attorney will review forms to be sure they actually provided the information necessary to make an informed choice.
Sometimes a form will:
- Fail to mention the specific complication experienced by the patient
- Fail to describe potential adverse outcomes in clear language
- Fail to convey the severity of potential outcomes
- Not be written in a language the patient understands
Additionally, even if a patient signs a consent form, it’s possible for a physician to have behaved in a negligent way, or, in extreme cases, to have committed gross negligence. Gross negligence goes far beyond the standard of care, to the point where even a non-medical professional would recognize it as wrong.
What you need to know when choosing a medical malpractice attorney
A medical malpractice case can be incredibly challenging to prove, and informed consent cases are among the trickiest.
Not only will the medical malpractice lawyer need to analyze medical records, looking for vague language, missing signatures or glossed over risks, but he or she will also often have to bring in medical expert witnesses who can support the case. Medical expert witnesses can help support the claim that another physician would have informed the patient regarding known risks. This is where experience matters. An attorney who has fought and won medical malpractice suits in the past understands the pitfalls of informed consent claims and has the network in place to secure compelling witnesses.
Experienced attorneys are also better able to judge when a case isn’t viable. Some medical errors or communications oversights won’t rise to the level of a medical malpractice lawsuit, and it’s often helpful for patients and loved ones to determine this early and change course.
Atlanta medical malpractice attorneys
A physician has a duty of care to inform patients of known risks to patient safety. If you or a family member experienced harm after a medical procedure—one you would not have consented to had you understood the risks—you may have a medical malpractice claim. The statute of limitations for filing medical malpractice claims is not long. It’s important to speak with an experienced medical malpractice attorney as soon as possible and begin gathering relevant documentation. At Litner + Deganian law firm we have experience in medical malpractice law representing patients affected by personal injury who were not informed of known risks. Contact us today for a free consultation if you believe you’re a victim of medical malpractice.
