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If a doctor or other medical professional did not properly explain the risks of your procedure, you may not have given informed consent to it. This may open the door to a malpractice lawsuit if the procedure in question caused you injury.
Understanding the nature of informed consent and what it means for your health is important. So is being able to prove the elements of a New York medical malpractice lawsuit. Learn how the Long Island attorneys of Dell & Dean PLLC can assist you.
What Is Informed Consent?
Every medical procedure or treatment has some degree of risk involved. Patients have the right to know about such risks before agreeing to the procedure or treatment. This is where the concept of informed consent becomes important.
Informed consent doesn’t just mean agreeing to a procedure by signing a form. A medical provider must first adequately discuss the procedure, including its risks, so the patient can decide if the possible benefits outweigh those risks.
New York Public Health Law § 2805-d requires a Long Island doctor to disclose the following information to the patient before obtaining the patient’s consent to the procedure or treatment:
- Reasonably foreseeable benefits and risks: This is essentially what a reasonable practitioner, in the same or similar circumstances, would disclose to the patient.
- Alternatives to the proposed procedure: Included is the option to do nothing as opposed to engage in any specific sort of treatment.
If a medical provider doesn’t take these steps and properly disclose the correct information about the treatment, then the patient did not give informed consent to it. This is a form of medical malpractice under New York law.
Proving Lack of Informed Consent
Before the patient can demonstrate the absence of informed consent in a Long Island medical malpractice claim, they must be prepared to show the following:
- The doctor’s failure to give proper information about the risks: The information may have been incomplete or inaccurate, or completely absent, thereby not allowing the patient to sufficiently weigh the risks against the benefits.
- A reasonably prudent patient would have declined: The patient must prove that the average patient, had they been informed, would not have gone through with the proposed treatment.
- The lack of informed consent was a direct cause of injury: Put another way, the patient suffered a risk which should have been properly disclosed to them but was not.
Possible Defenses to a Medical Malpractice Claim
There are some possible ways that doctors can defend against the patient’s claim of malpractice, and they are derived in part from the above statute. They include:
- The procedure or treatment was an emergency: The informed consent statute applies specifically to non-emergency treatments. If it was not possible to obtain consent, for instance if the patient was unconscious and at risk of death, then it may not qualify for malpractice.
- The procedure was non-invasive: The procedure in question must have “involved invasion or disruption of the integrity of the body.”
- Common risks: If the risk was a commonly known risk, there may have been no duty to disclose it to the patient.
- The patient refused information or dismissed the risks: If the patient refused to be informed of the risks, or insisted upon treatment regardless of them, this fact may also be a defense.
- A reasonable person would have agreed to the procedure: The evidence may show that the typical patient would have agreed to the procedure regardless of risks.
Do You Have a Claim? Let Us Review Your Case
If you suffered malpractice and believe you were not properly informed of the risks or alternatives to your procedure, it’s time to explore the possibility of a lawsuit. Our Long Island medical malpractice attorneys can take a look at your case.
Allow us to explain the details of medical malpractice claims, review your options for recovering compensation, and then get to work building a case for you. To get started, connect with Dell & Dean and schedule your initial consultation today.
