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Informed Consent for Surgery Lawyers

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What is the Difference Between "Consent" and "Informed Consent?"

Although the two terms are basically about the same idea, there is a key distinction between consent and informed consent.  

  • General consent to a surgery just means that you have given the doctor permission to undergo the procedure, and prevents the doctor from being charged with a criminal battery (since, without your consent, surgery is legally no different from the doctor attacking you with a scalpel!).  
  • Informed consent means that you have not only consented to the procedure, but are fully knowledgeable about all its possible risks and consequences.  A doctor having only simple consent, but not informed consent, can therefore not generally be charged with a criminal battery, but with professional negligence and/or malpractice instead. To be able to provide informed consent, however, requires you to be in full control of your faculties, and to be legally capable of giving such consent.

What are Some Things That Can Invalidate My Consent?

Many things can make it legally difficult for you to consent to surgery, including 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

These are just some of the examples of conditions that can arguably invalidate any consent you give.

What Constitutes Informed Consent?

Before getting your consent for surgery or anesthesia, the law requires doctors to inform the patient of the common risks of the procedure even if they are not serious, and (conversely) the very serious risks of the surgery (like death) even if they are not common.  So if you suffered a series of mild side effects from a surgery that you were never warned about (like getting headaches or cramps), and these are commonly associated with that surgery, the doctor may be held liable (although your recovery would be limited by the minor nature of your suffering).  

But if you suffered a serious side effect from the operation and were not warned about it (even if it was a very rare side effect), or you were warned about it in a way that was difficult for you to understand, then you may have a very strong case against the doctor and/or hospital.  

Consent While Medicated or in Pain

Trying to obtain consent from a patient either in great pain or under pain medication is a double edged sword for doctors.  It is common for hospital to follow either the practice of allowing doctors to get consent from patients who have been sedated to relieve their pain (thus raising intoxication issues), or the practice of deliberately withholding pain medication from a patient in order to get a clear consent (thus raising duress issues).  

If the patient IS sedated, then he obviously may not be capable of fully understanding the risks the doctor is talking about, and the consent may be invalid.  If the patient is NOT sedated, and in great pain, patients may feel pressured to consent in order to obtain medication to relieve their suffering, and the consent may be invalid.  Indeed, many studies have found that medication before a surgery may actually enhance a patient's ability to make decisions, by providing pain relief or relief from emotional distress, so that they can focus on the choices they are making.

After My Surgery, I Found Out There Were Many Risks That I was Not Informed Of!

In most states, if you discover information about non-disclosed risks or complications that can arise from your surgery, but you already had the surgery, you cannot sue unless you actually suffer from those complications.  So you generally cannot sue if, after your myomectomy, you discover that there was a slight risk you could have died that you were never informed of (unless of course you actually DO die from the surgery).

Can an Attorney Help Me?

If you have undergone any operation which you feel may not have been necessary or you did not understand, or you have suffered from side effects that you were never informed of, you should contact a malpractice attorney immediately!  An experienced personal injury lawyer can offer you a free consultation, and explain to you what options are available to you, and who might be held liable for your suffering.   

Any attorney can also clarify the many circumstances which might invalidate any consent you may have given for a surgery, and discuss the possible malpractice recovery limits your state may have.  Hospitals and doctors will have large legal teams to defend against any claims of malpractice, so an attorney who knows the ins and outs of the system will be essential to get your rightful recovery.

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 03-13-2018 11:09 PM PDT

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