Informed consent cases are frequently overlooked by medical malpractice lawyers. Generally speaking, informed consent cases have become disfavored because sophisticated hospitals, insurers and physicians groups use broadly-worded informed consent forms that can be used by their lawyers to argue that any informed consent claim was waived. These informed consent forms include language like “all material risks have been explained to me and all of my questions have been answered.” This broad language makes it difficult for the patient to later argue that they were not told about certain material risks of the procedure. However, if the risk was not explained, informed consent was not obtained, in fact. Proving this to a jury is difficult since it becomes a “he said, she said” controversy pitting the patient’s word against the doctor’s word.
However, informed consent claims, along with related claims of fraud and medical battery, do have their place in modern litigation. In most surgical cases, the surgeon will claim that any complication suffered by the patient was a known and accepted complication of the procedure. Indeed, many common surgical complications are listed in the medical literature as risks of the procedure, such as infection, bleeding and damage to surrounding structures. In some instances, proper technique can avoid or minimize the risk of such complications. However, in a particular case it is often impossible to prove that the physician deviated from an accepted technique, or failed to be careful, unless the surgeon openly admits to a surgical mistake in the operative note. That almost never happens.
If a particular complication is a known and accepted risk of the procedure, then the surgeon has the duty to explain that risk to the patient prior to the operation. In addition, the surgeon must explain the benefits of the surgery and its purpose. Finally, the surgeon also has a duty to explain surgical options to the patient.
Often, the informed consent process is glossed over. The surgeon may consider the surgical risks to be matters of common knowledge and a routine part of the surgical practice. However, for many patients, the unexpected complication was not known or expected. In order to proceed with an informed consent claim, the medical malpractice lawyer will need to hire an expert witness to acknowledge that the complication was a known risk of the procedure. The complication must also be a material risk, meaning that it is not a rare or unusual risk. Finally, depending on your state’s laws, the medical malpractice attorney may have to prove an additional element, which is that a reasonable person would not have undergone the procedure had they known all of the material risks. The latter element inevitably raises the argument that the patient is simply “Monday morning quarterbacking” by arguing that he/she would not have undergone the procedure if the risks were known.
If a surgeon performs procedures that were not part of the original plan, this may constitute a medical battery. Likewise, if the physician misrepresents the risks or benefits, or his/her lack of experience in performing the surgery, a claim for medical fraud may exist. In order to know your legal rights, you should contact an attorney, like a medical malpractice lawyer from a law firm such as Mishkind Kulwicki Law Co., L.P.A.