What is Surgical Consent? Does It Have to be a Written Document?
Generally "consent" to a surgery means that you have given the doctor permission to undergo the procedure, and it does not necessarily have to be written down (though it often is in most cases). A doctor having your general consent for an operation is the only thing that separates your surgery from a criminal battery! A related term, informed consent, relates to not only consenting to a surgical procedure, but being fully aware of its possible consequences. Both are needed for a doctor to legally be able to operate on you. Is My Consent to Surgery Revocable?
Certainly, your consent is completely revocable at any time prior to the surgery itself, presuming you are mentally and legally permitted to have consent in the first place. But if the surgery is already over, and your consent was given, can you retroactively revoke consent? Sometimes you can.
There are many circumstances that the courts may consider in evaluating whether you truly gave consent to surgery. These include being: - mentally ill
- mentally disabled
- a minor
- under the influence of drugs or medication
- under great stress or in pain at the time of the consent
- semi-conscious
- intoxicated
- in labor
All of these are situations when your consent may not be fully voluntary and therefore legally suspect. If you gave consent while having one of these conditions, and the doctor should have realized this, he can be liable for negligence. What if a Doctor Performs a Surgery Without Any Consent?
Surgery without any consent usually happens one of two ways: - A doctor, in the middle of a routine surgical procedure (that you DID consent to), discovers a new medical problem and attempts to rectify it with surgery. For example, during a routine appendectomy, a doctor discovers cancerous growths in your uterus, and removes the uterus entirely. In this situation, the laws may vary state to state, but the general rule is that a doctor is only allowed to perform additional surgery to the one consented to if the additional medical problem can be considered an emergency life-threatening situation. Otherwise, the surgery can be performed later, after you have been informed and given consent. So in the above cancerous uterus example, the doctor would not be allowed to remove the uterus unless it was so cancerous as to be a threat to your life at that very moment.
- A doctor specifically goes against your wishes to perform a medically necessary surgery. For example, a Jehovah's witness, who believes blood transfusions are a sin, specifically tells medical personal to not give him blood under any circumstances. During the operation his health begins to fail, and the doctor orders the transfusion to save his life. In this case, even though it was an emergency situation, the doctor and the hospital are still liable for an unconsented operation.
(However, this situation becomes much more complicated if the patient in this example is a child. See Christian Scientists and Children's Medical Care.)
Are There Limits to How Much I Can Recover?
Most states now have in place a limit on how much anyone can recover on medical malpractice law suits. However, this is where the fine distinctions between "informed consent" and just plain "consent" come into play. A surgeon who has failed to adequately explain the risks of a surgical procedure that you have agreed to is guilty of malpractice, so in such a case, the state limits how much you can get back. But in cases where the basic consent has not be obtained, it is no longer an issue of negligence, but one of battery and trespass (to your body), so the state limits may NOT apply. This can be the difference between recovering $500,000 from the hospital, or $50,000,000, so it is certainly an important distinction. How Can an Attorney Help?
As you can see, the laws concerning medical consent are full of gray areas that an experienced malpractice lawyer will help you navigate. Suing doctors and hospitals is a very complicated affair, so it is important to completely understand your rights and options. If you have been the victim of an unasked for or unnecessary surgery, or a doctor has gone against your express wishes while in the hospital, you should contact an attorney at once to learn how best to recover for your pain and suffering. |
