Lack of Informed Consent

Nearly every state has laws protecting a patient’s right to receive information about his or her medical condition, treatment options, possible risks and prognosis. This information should be provided in layman’s terms that can be easily understood, and also with sufficient detail to allow the patient to make an informed decision about his or her care.

While some occasions do not require informed consent (emergencies, risk of significant harm, legally required treatment, etc.), hospitals have an obligation to ensure that hospital staff obtain a patient’s consent for treatment. If informed consent is not obtained when required, the physician or hospital can be held liable for damages.

If you believe that you have a medical malpractice case due to lack of informed consent, contact a Osborne, Francis & Pettis attorney for a free and confidential consultation today.

Consent Forms and Medical Procedures

If you or a loved one will be having surgery, it’s likely that you will be asked by your doctor’s office, clinic, hospital or other medical venue to sign a form known as a consent form. This form usually contains language about the risks of the procedure and often attempts to have you, as the patient, waive your right to bring claims if there are complications. The waiver language within the consent form can often be something along these lines:

• All surgical procedures carry risks, some of which are significant, including infection, bleeding and even death.
• The doctor or other medical professional has informed you of the risks of the procedures, the nature of the procedure, and the benefits of the surgical or medical procedures.
• You’ve been informed of possible side effects and potential problems that might occur.
• You’ve been informed of other reasonable alternate methods of treatment, as well as the benefits and risks of those alternatives.
• You have been informed of the consequences of refusing to undergo the medical procedure and reasonable alternatives.

Most waivers typically go on to state that:

• There are no guarantees as to the procedure’s results.
• By signing the consent form, the patient agrees to fully release the medical providers from any claim, loss or damage related to the procedure.

In sum, when a medical professional, clinic, hospital or other health care provider asks you to sign a consent form, they are attempting to absolve themselves from legal liability or otherwise limit their liability. But what happens if you refuse to sign the consent form? Or what happens if you sign the consent form containing this type of waiver language and you are injured by the procedure?

Waivers in Medical Negligence and Malpractice Claims

Medical negligence is the breach of the standard of care by a doctor that causes injury to a patient who suffers harm. To prove medical malpractice, you must show that:

• There was a doctor-patient relationship;
• The doctor failed to meet the standard of care required; and
• The patient suffered compensable damages because of the failure.

If you sign a waiver wherein you agree not to hold the doctor or facility liable, it may be enforceable in many instances.

However, there are at least two scenarios where you could still file a medical malpractice lawsuit even if you signed a waiver.

1. The first scenario relates to “informed consent.” Informed consent means that you have been properly informed by the medical professional(s) of the risks associated with the medical procedure. You were not properly informed if your doctor or medical professional failed to adequately describe the risks involved or failed to detail certain important side effects.
2. The second scenario relates to when the doctor, hospital or other medical professional engages in gross negligence and willful, wanton or reckless behavior. Gross negligence could include things such as amputating the wrong foot, performing surgery on the wrong side of the brain, or leaving a surgical instrument inside of the body cavity.

If you signed a waiver in one of these types of situations and you suffered compensable injuries, you may be able to sue for medical malpractice.

Contact a Medical Malpractice Attorney

If you’ve been injured by a medical professional but signed a waiver, it’s important to contact a medical malpractice attorney to understand your rights. Similarly, if you refused to sign a waiver and you’ve been injured, you will need a lawyer’s help to understand the ramifications.

But you must act fast. In Florida, the statute of limitations period is two years after the injury occurred or after you should have noticed the injury.

The attorneys at Osborne, Francis & Pettis are recognized throughout Florida as top-notch legal professionals with extensive experience with medical malpractice cases. Contact us today to see how we can help you.