Doctors are required by law to disclose all relevant information to patients regarding medical treatment or medical procedure.
A patient must give informed consent before a doctor can perform a medical procedure and a patient needs enough information to make an educated and informed decision regarding their medical care. If doctors fail to disclose pertinent information, they can be held liable for medical malpractice.
A doctor has the duty to disclose all relevant information including:
- What type of illness or condition you have.
- What treatments and procedures are available.
- What the treatments and procedures involve.
- The likelihood of success for those treatments and procedures.
- The risks involved with those treatments and procedures.
- The risks of not undergoing the treatments or procedures.
- What alternative treatments or procedures are available.
- The risks of the alternative treatments or procedures.
A physician must use the degree of care and skill of the average physician who practices in that particular specialty and this takes into account the medical knowledge which is available to the physician.
The standard of care is based on the customary practices of the average physician which means that it is based on what the average physician would customarily or typically do in similar circumstances.
If a doctor’s conduct falls below this standard of care, then there is medical negligence although you also have to establish other elements before filing a medical malpractice claim.
Doctors are only required to make disclosures which are mandated by law but they do not need to disclose every possible risk or medical alternative. The general standard which is applied is that if a reasonable doctor would disclose the information, then a doctor is obligated to disclose the information.
Doctors do not need to disclose risks to their patients if the patients do not want to know, if disclosure would harm the patients or if a procedure is simple and the medical community views the danger as low.
Patients will often give their consent to a doctor or hospital in writing but patients can give oral consent as well. When a patient needs immediate care in emergency situations but cannot speak or otherwise give consent for treatment, then consent is implied.
Courts have ruled that a doctor is negligent if they fail to inform a patient enough to enable the patient to give informed consent. State laws can vary but a patient can generally recover damages for a lack of informed consent if:
- The patient was unaware of the risks associated with the medical treatment or procedure.
- The doctor did not disclose the risk.
- The patient would have chosen a different treatment or procedure if they had known the risk.
- The treatment or procedure injured or harmed the patient.
If any of these elements are missing, there may not be a viable medical malpractice claim. For example, if your doctor did not disclose a risk associated with a surgery but you undergo the procedure without any injuries or complications, you cannot sue your doctor because you did not experience any harm from the procedure.
If you are a patient and you suspect that medical practice occurred, it would be beneficial to contact a local personal injury attorney who can evaluate your case and represent you in court if necessary.