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Can You Seek Medical Malpractice Compensation for a Lack of Informed Consent?

Posted on behalf of Peter T. Nicholl in Medical Malpractice Dec 14, 2022

informed consent form on deskUnder Maryland law, doctors are required to give patients informed consent about the risks of treatment before providing treatment. If doctors do not provide informed consent, and the patient suffers damages because of the treatment provided, there may be grounds for a medical malpractice case.

Proving there was a lack of informed consent requires detailed evidence. For example, your lawyer needs to determine what the doctor told you and what he or she did not tell you. If there was a risk you were not informed of, your lawyer needs to determine if other doctors would have informed their patients of the risk.

Our experienced Maryland medical malpractice lawyers are ready to help you seek compensation for medical malpractice damages. Call our firm to learn if you may have a case and schedule a free legal consultation. There are no upfront fees for our services.

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Consent Must be Provided to Mentally Competent Patients

Under Maryland, mentally competent patients must give informed consent for treatment before treatment can be provided. Mentally competent patients can understand the treatment being provided and the potential risks. They must be able to rationally evaluate the risks and benefits of the treatment being proposed. They must also be able to communicate their consent or lack of consent to the doctor.

Doctors cannot get informed consent from a mentally incompetent patient. These patients are unable to fully understand the treatment being provided and the pros and cons.

If the patient does not have the mental capacity to consent, a surrogate may be appointed who can provide consent. The surrogate must consider the best interests of the patient, factoring in:

  • Risks of treatment
  • Life expectancy
  • Possible long-term benefits
  • Religious and moral beliefs of the patient
  • Preferences the patient has expressed about treatment

There are two other situations when doctors may not be able to get informed consent from the patient. For example, in an emergency a doctor may need to provide treatment to save the patient’s life. The doctor does not have time to adequately describe the risks of treatment. The patient might also be unconscious.

Patients who are under high stress may not be able to give informed consent and doctors may not be required to obtain it. For example, treatment may be necessary to save the patient’s life. The patient might not give a rational response to what the doctor says and may even refuse treatment.

What Risks Should Doctors Tell Patients About?

Doctors are only required to tell patients about material risks when trying to obtain informed consent. Material risks are risks that the doctor knows or should know would be significant to a reasonable person. Doctors do not need to inform patients about bad results that are unlikely to occur.

There are two tests that doctors can use to determine if a risk needs to be explained to the patient: would the risk have been explained by another doctor and would having been informed of the risk cause the patient to change his or mind about treatment?

If another doctor would disclose the risk to the patient, then the first doctor is likely required to tell his or her patient. Your lawyer is going to need to hire a medical expert to explain why certain risks should have been explained to the patient.

For the second test, your lawyer needs to consider if another patient, with a similar medical condition and medical history, might have changed his or her mind about treatment after being informed of a risk. The idea is that a patient needs to be informed enough to understand his or her decision about treatment.

Providing Treatment the Patient Did Not Consent to Receive

Some informed consent cases involve the doctor providing treatment the patient did not consent to receive. It is important to note there are times when doctors may provide treatment even though the patient did not agree to receive it. For example, if a doctor was operating and found another serious problem, he or she would likely be within his or her rights to fix it.

Building a Medical Malpractice Case for Lack of Informed Consent

Even if the doctor did not obtain your informed consent, it is unlikely victims will have a legitimate case unless something went wrong during treatment, such as a surgical error, medication error or complications from treatment. For example, if doctors provided treatment that you did not consent to receiving and you suffered an injury, there might be grounds for a medical malpractice case.

If a patient was informed of a possible bad outcome and that bad outcome happens, the patient may not have a viable case. Even though there was a bad outcome, the patient knew about it, so it may be harder to claim medical malpractice. That said, if the bad outcome happened because of a doctor’s carelessness, there may be a case.

Contact Us Today to Discuss Your Legal Options

Medical malpractice can cause devastating injuries that require expensive treatment. In some cases, lives are forever altered because of the carelessness of the medical professionals who provided treatment.

The Law Offices of Peter T. Nicholl has been helping medical malpractice victims for decades. We have secured millions for many victims and are prepared to help you.

Free initial consultation. No upfront fees. Call 410-244-7005

Contact our personal injury lawyers for a free consultation if you have been injured by another’s negligence. You may be entitled to compensation.

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