Before doctors perform a medical procedure or treatment, they must provide a patient with an informed consent form. The form should describe the treatment the patient is about to receive, along with the associated risks. When a medical provider fails to obtain informed consent from a patient and the patient becomes injured, he or she may have a right to compensation.
The attorneys at Dell & Dean, PLLC, know how to hold negligent medical professionals accountable for injuries caused by their negligence. Our team of medical malpractice attorneys will help you understand whether you have a right to pursue compensation from the doctor or the hospital responsible for your lack of informed consent. Contact Dell & Dean, PLLC to schedule a free case evaluation with one of our experienced attorneys
What Is Informed Consent?
When it comes to healthcare law, patients have the risk of being informed about their treatment options. Informed consent should always be a conversation between a doctor and patient, not merely a form that a patient signs. The discussion between a patient and provider should allow ample opportunities for the patient to ask questions about the procedure.
The patient should also be able to understand what will occur during the procedure and the risks associated with the procedure. Only after the patient’s doctor has explained the benefits, risks, and alternative treatment options can the patient make a truly informed decision and provide the medical provider with legally sufficient informed consent. A discussion about informed consent should include the following specific elements:
- The doctor explains the patient’s diagnosis and prognosis
- The nature of each of the patient’s available treatment options
- The anticipated risks and benefits of each available treatment option
- Any potential alternative treatment options
- The potential benefits and risks of other treatment options
- The risks of benefits of refusing medical treatment
When Does the Lack of Informed Consent Constitute Medical Malpractice?
In some cases, a lack of informed consent can constitute medical malpractice. For a patient to hold the doctor, hospital, or another medical provider financially responsible for proving that you wouldn’t have opted to receive a specific treatment that caused you to harm if you had been fully informed about the risks associated with the procedure. In an informed consent lawsuit, the plaintiff must prove that he or she experienced a significant risk or complication from the medical procedure or treatment, irrespective of whether the procedure was performed properly. Next, the plaintiff must prove that the doctor failed to inform him or her of the reasonably foreseeable risks of the medical treatment and any alternative treatments and that a reasonable doctor would have done so.
In addition to proving that his or her consent wasn’t informed, the plaintiff must prove proximate causation for the complication or injury. Generally, proximate cause means that a reasonable person in the plaintiff’s position would have attached significance to the material risks of the treatment that the doctor did not fully disclose. The plaintiff also needs to prove that a reasonable person in his or her condition would have decided against consenting to the procedure.
New York Limits Lack of Informed Consent Claims
New York Public Health Law 2805-d limits the scope of medical, podiatric, and dental malpractice actions based on a lack of informed consent. As a result, medical malpractice claims based on a lack of informed consent are limited to non-emergency treatments, procedures, or surgeries.
Plaintiffs can also bring claims based on a lack of consent for diagnostic procedures that involve invasion or disruption of the integrity of the plaintiff’s body. In New York, cases based on a lack of informed consent in emergency medical care or for noninvasive tests are not permitted, even if performed without the patient’s informed consent. Doctors in New York can use the following defenses to avoid paying compensation in cases involving a lack of informed consent:
- The undisclosed risk was so commonly known the doctor didn’t need to disclose it
- It wasn’t reasonably possible for the doctor to obtain consent from the patient or on behalf of the patient
- The patient assured the doctor he or she wanted the treatment regardless of the risk
- The patient assured the doctor he or she didn’t want to be informed
Finally, doctors can defend themselves by claiming they used reasonable discretion in not disclosing risks or alternatives. They must prove they made this decision based on their reasonable belief that disclosure could negatively and substantially affect the patient’s condition.
The Benefits of Working with a Skilled Medical Practice Attorney
As you can see, doctors have considerable leeway regarding not giving patients informed consent in New York. Discussing your case with an attorney is especially important if you suffered a complication after not receiving informed consent. The medical malpractice attorneys at Dell & Dean, PLLC work closely with our patient’s clients to pursue the total amount of compensation they deserve.
Our legal team will investigate your case by determining whether you received a consent form and whether it was clear and complete. We will also determine whether the consent forms adequately explained the risks and benefits of the procedures. The nature of the undisclosed risk that affected you will also be an important factor in whether you have a claim for compensation. If you’ve been injured in a medical procedure and weren’t informed consent, you only have a limited amount of time to file a claim for compensation. Speaking to an attorney as soon as possible will give your attorney time to gather evidence and negotiate a favorable outcome.
Discuss Your Lack of Informed Consent Case with a Knowledgable Long Island Attorney
When medical professionals forgo the necessary pre-treatment discussion, patients may not understand the risks they are undergoing. If you or your loved one have suffered from a complication from a medical procedure your doctor never discussed with you before the procedure, Dell & Dean, PLLC is prepared to fight for your right to compensation. Contact Dell & Dean, PLLC to schedule a free case evaluation with a skilled attorney.
Dell & Dean, PLLC represents lack of informed consent victims throughout Nassau County and Suffolk County on Long Island as well as the boroughs of New York City, and the surrounding areas.
