By law, all doctors are required to disclose all relevant information to parents regarding medical treatment or procedures. Patients are required to provide informed consent before their doctor can perform a medical procedure.
In addition, the patient must have enough information to make an educated and informed decision regarding their medical care. If a doctor fails to disclose all relevant information, they may be held liable for medical malpractice.
Although the two terms are associated with the same concept, there is an important distinction between consent and informed consent. General consent to a surgery simply means that the individual has given the doctor permission to undergo the procedure and prevents the doctor from being charged with a criminal battery.
Informed consent means that an individual has not only consented to the procedure, but is also fully knowledgeable in terms of all of the possible risks and consequences. A doctor who obtains only simple consent but not informed consent, in general, cannot be charged with criminal battery.
Instead, they may be charged with professional negligence or malpractice. In order to be able to provide informed consent, an individual must be in full control of their faculties.
In addition, they must be legally capable of providing the consent. Prior to obtaining consent for surgery or anesthesia, the law requires a doctor to inform the patient of the common risks associated with the procedure.
This is true even if those risks are not considerably serious. In addition, a doctor must inform the patient of the very serious risks that may be associated with the surgery, such as death, even if those risks are not considered to be common.
What Type of Information Does a Doctor Have to Disclose?
A doctor is only required to disclose all relevant information, which generally includes:
- What type of illness or condition the individual is being diagnosed with;
- What treatments and procedures are available;
- What the treatments and procedures involve;
- The likelihood of success and failure for those treatments and procedures;
- The risks that are associated with the treatment and procedure;
- The risks of not undergoing the treatments or procedures;
- What alternative treatments or procedures may be available; and
- The risks of any alternative treatments or procedures that are suggested.
Doctors are only required to make disclosures that are mandated by law. In other words, they are not required to disclose every possible risk or medical alternative.
The general standard that is applied is if a reasonable doctor would disclose the information, another doctor would be obligated to disclose that same information.
What Is the Medical Standard of Care?
The standard of care for a medical provider can, in general, be defined as the level of care that a reasonably competent and skilled medical professional with a similar background who practices in the same medical community, would have provided to a patient under the same or similar circumstances. This definition, however, may vary by jurisdiction and will, in some cases, change depending on the type of medical professional as well as the local rules.
For example, a local rule may provide that medical professionals must possess the reasonable level of skill and knowledge similar to that of other physicians and surgeons who practice medicine in the jurisdiction.
According to the United States Department of the Interior, there are certain medical standard of care guidelines that medical professionals must generally follow, including:
- Maintaining consistency and uniformity when performing medical evaluations on all patients;
- Conforming with the rules that are outlined in the Americans with Disabilities Act (ADA);
- Promising not to aggravate, accelerate, or worsen any patient’s existing or preexisting medical conditions; and
- Obtaining the necessary qualifications to become a licensed medical professional.
Common examples of violations of medical standards may include but are not limited to:
- Failure to diagnose or misdiagnosing a serious medical condition;
- Disregarding instructions from an advisor or superior, for example, an experienced physician directing a medical intern or nurse to perform certain tasks;
- Performing surgery on the wrong patient or on the incorrect body part;
- Violating a patient’s expectation of privacy, such as HIPAA violations;
- Failing to exercise the proper level of care prior to, during, and after serious medical procedures, for example:
- not receiving informed consent;
- leaving medical tools inside a patient’s body;
- releasing a patient too early; or
- other actions; and
- Entering improper data into a patient’s medical record or chart.
It is important to note that medical professionals who have more experience or possess a greater skill set may be held to a higher degree of care than the average medical professional. Because of this, what may qualify as a violation of medical standards for certain medical professionals, may not count as a violation for others if they are held to a lower standard.
If a medical professional is incorrect, careless, or negligent in their treatment of a patient, it is considered medical negligence. If a doctor, medical professional, or healthcare institution fails to uphold the standard of care required when supervising, diagnosing, or treating a patient, and an injury results, it is called medical malpractice.
The deviation from the minimum standard of care expected of all medical professionals typically results from negligence.
Does Everything Need to Be Disclosed?
As noted above, doctors are required to disclose all relevant information that is mandated by law but they are not required to disclose every possible alternative or risk. In general, as previously noted, a doctor is bound to disclose the information if a reasonable doctor would disclose the information.
Doctors are not required to disclose risks to their patients if:
- The patients do not want to know;
- Disclosure would harm the patients; or
- A procedure is considered simple and the medical community views the dangers as sufficiently low.
If a doctor fails to inform a patient regarding required information, they may face legal consequences.
How Is a Patient’s Consent Obtained?
As noted above, doctors must gain a patient’s consent before providing care. The majority of hospitals require an adult’s signature before any nonemergency surgery.
Typically, a parent or guardian must provide consent for a minor patient. A patient typically provides their consent to the doctor or hospital in writing.
Patents may, however, provide oral consent. If a patent needs immediate emergency medical care but cannot provide consent, consent is implied.
Implied consent is not expressly given but inferred from the circumstances. In a doctor-patient relationship, implied consent typically arises when a doctor performs an action that is within the scope of standard medical practice and the patient does not object or stop the doctor from continuing.
For example, if a patient comes into the emergency room with an injury, doctors will typically begin treating them without waiting for explicit consent.
What If the Duty to Disclose Is Breached?
Courts have ruled that doctors are considered negligence if they fail to sufficiently inform a patient so they are enabled to provide informed consent. State laws on filing a medical malpractice claim may vary.
A patent can typically recover damages for a lack of informed consent if:
- They were unaware of the risks associated with the medical treatment or procedure;
- The doctor did not disclose the risk;
- They would have chosen a different treatment or procedure had they known of the risk; and
- The treatment or procedure injured or harmed the patient.
It is important to note that if any one of the elements listed above are missing, there may not be a viable medical malpractice claim. For example, if a doctor does not disclose a risk associated with a surgery and the patient undergoes that procedure but does not suffer any injuries or complications, they would not be permitted to sue the doctor because they did not suffer harm.
Should I Contact a Lawyer?
If you believe you may have suffered injury or harm because of medical malpractice, it is important to consult with a personal injury lawyer as soon as possible. Your lawyer can advise you of your legal options under your state’s personal injury and medical malpractice laws.
Your lawyer will also represent you in court and during any negotiations that may occur with the medical professionals or their representatives.