Medical Negligence: Informed Consent

When you consent to an operation or procedure are you really aware of the risks?

No surgery should be taken lightly, by those performing it or those undergoing it.

Treatment providers have a duty to obtain the patient’s informed consent for any procedure.

It is common to have information provided, often in writing as to the nature of the procedure and as to the risks, or at least the common risks.

Consent to the procedure is usually obtained in writing.

Sometimes, the risks are not properly advised or discussed. In these cases, if something does go wrong, it can be argued that while the patient had consented to the procedure, it was not an informed consent. That is to say, the patient did not truly or fully understand the nature of the procedure or the risks associated with it.

In these events the patient may argue that the adverse consequences of surgery entitle them to compensation even if the procedure was not necessarily performed carelessly or negligently.

It is important to remember that most surgery occurs as a response to a medical condition that requires treatment.

A person claiming compensation in these events needs to be able to say that if they had known the true risks then they would not have undergone the surgery. This test needs to be applied from the patient’s viewpoint before the surgery, not afterward.

A court must determine whether the particular claimant would really have avoided the procedure altogether if they had known the risk of a possible poor outcome.

The importance of the procedure becomes relevant. For example, if a minor cosmetic procedure had a high risk of complications, it is easier to establish that if the patient had been properly informed, they would not have undertaken the procedure.

On the other hand, if the condition being treated was itself life threatening, then the small risk of an adverse consequence is unlikely to be considered to have affected the patient’s decision to undergo the procedure.

Remember that poor outcomes can occur despite all proper care being taken.

The lesson is to read and understand all information provided and to feel empowered to ask questions of all treatment providers.

If there is a poor or unexpected outcome that was not clearly advised, then the person affected should seek legal advice.

Informed consent is only one aspect of medical negligence law. There are of course many others.