Generally speaking, surgical consent basically means that you have given your doctor or surgeon permission to perform a procedure. Although this type of consent does not necessarily need to be in writing, a doctor or surgeon is legally required to obtain some form of your consent (e.g., in writing or oral) before they can proceed with the procedure.

If they fail to get your consent and move forward with the surgery regardless, they may be charged with a criminal offense.

In addition to surgical consent, you must also provide informed consent. This type of consent means that you have been informed of all potential risks and consequences associated with the procedure. Unlike surgical consent, which essentially just says you agreed to the surgery, informed consent assumes that you have a complete understanding of what can happen during or after the procedure.

Both forms of consent are required by law. Thus, you must provide both to your doctor or surgeon before they can legally perform the operation.

Can I Take Back My Consent to Surgery?

A patient may withdraw their consent to surgery at any time prior to when the surgery is set to occur. However, there are certain situations that will allow a patient to revoke their consent even after the surgery has already been performed.

Factors that a court may consider when determining whether or not a patient provided proper consent tend to hinge on the patient’s mental competency. These factors may include assessing whether the patient is or was:

  • A minor;
  • In labor;
  • Mentally ill or disabled;
  • Under the influence of alcohol, drugs, or prescription medication;
  • In a partially conscious state; and/or
  • Experiencing great stress or pain at the time of consent.

In other words, for consent to be valid, it must conform with surgical consent guidelines, namely, that:

  • The patient’s consent is given voluntarily;
  • After they have been fully informed of the risks and consequences; and
  • They possess the mental capacity required to understand and make informed decisions.

What if my Doctor Performed Surgery Without Any Consent?

There are certain situations where a doctor can perform surgery without consent. Some exceptions may include when:

  • A patient needs emergency treatment;
  • An emergency procedure is required during an operation; and/or
  • A patient has a severe mental health condition, needs immediate medical attention, and has not appointed someone or does not have anyone around to give consent on their behalf.

Despite these exceptions, doctors and surgeons can still face legal repercussions for not obtaining a patient’s consent before performing the surgery. Oftentimes, a patient will attempt to sue the doctor or hospital for medical malpractice in these types of situations.

For example, a doctor is generally not allowed to perform an additional surgery while the patient is undergoing their scheduled procedure unless an emergency situation arises that threatens the patient’s life.

If the additional procedure was not life threatening, then the patient may be able to recover damages for medical malpractice. It should be noted that the patient must also suffer some sort of injury or harm as a result of the unauthorized treatment, otherwise they will not have a case.

In some instances, a doctor who fails to obtain consent may also face criminal charges. However, the decision of whether to press charges will be left up to the state or local prosecutor.

Some surgery without consent charges include gross negligence, battery, and/or assault. If convicted, the doctor may have to pay fines, could potentially have their medical license revoked, and in extreme cases, might receive jail time or a prison sentence.

What are the Remedies for Injuries Connected with Non-Consensual Surgery?

As discussed above, the remedies for injuries connected to non-consensual surgery will depend on the facts of a case and the laws of a particular state. The plaintiff must also suffer harm as a result of the non-consensual surgery. Some damages that the plaintiff may be able to recover include:

  • Monetary damages (e.g., lost wages, hospital bills, medical expenses, etc.);
  • Damages for pain and suffering;
  • Punitive damages;
  • The court may suspend or revoke the physician’s medical license; and/or
  • In extreme cases, the court may also request that the medical facility cease operations.

Also, keep in mind that many states have enacted statutes that impose limits on the amount of damages that a plaintiff can receive for a medical malpractice lawsuit.

Are There any Defenses Available?

The defendant may be able to raise one of the following defenses against a claim where surgical consent is at issue, including:

  • Statute of limitations: The plaintiff must file an action within the time frame provided by the statute of limitations in their jurisdiction. If the plaintiff files after the time limit has expired, then the defendant can assert this as a defense.
  • Consent: If the defendant can prove that the plaintiff did in fact provide proper consent, then the case will automatically be dismissed.
  • Emergency or life-threatening situation: An emergency or life-threatening situation is one of the only exceptions to lack of surgical consent. However, some matters are not so clear and thus may require a court to intervene. The defendant may be able to use this as a defense, but it does not always apply to every emergency scenario.
  • Lack of proof or fault: The plaintiff must be able to prove that the defendant was responsible for their injuries and that those injuries stemmed from a situation in which they did not obtain the plaintiff’s consent. If the plaintiff fails to prove their case, then the defendant may be able to raise this as a defense to their claim.

How Can a Personal Injury Attorney Help?

If you believe that your doctor performed an unnecessary surgical procedure or operated on you without obtaining your full consent, then you should contact a local personal injury lawyer as soon as possible. Your lawyer will be able to determine whether you have a viable claim, can help you prepare and file your case, and can discuss how the laws in your state may affect the amount of damages you receive.

Additionally, your lawyer will know whether the circumstances may have invalidated your consent. Finally, your lawyer will also be able to represent you in court, or alternatively, can negotiate on your behalf in the event of a settlement.