The Messina Law Firm
Informed Consent for Healthcare Treatment
When you hear the phrase “medical malpractice,” you usually think of a doctor who has made some terrible medical mistake, such as misdiagnosing a disease or leaving a swab in a patient during surgery. However, other kinds of things also give rise to what Texas calls a “health-care liability” claim, including the failure of a doctor to get you, the patient’s, informed consent for Healthcare treatment.
The idea behind informed consent is that you have the right to make decisions about what kind of medical treatment you will agree to receive. In order for your consent to be considered “informed,” the doctor must tell you of the benefits and risks presented by a particular course of treatment, which allows you to have enough information to make an informed decision.
The right to facts, but not necessarily to details.
Because most patients like yourself do not have medical degrees…Informed consent does not require doctors to tell you every technical medical detail. The detail that would require a medical degree to understand is of no use to you. However, It does require doctors to tell you about any fact that would affect a reasonable person’s decision to accept or decline a particular treatment.
Generally, this means that the doctor should tell the patient:
(1) Of your diagnosis.
(2) You should know the nature and the purpose of the treatment being proposed.
(3) Your chances of the treatment’s success.
(4) You should know the risks of your treatment.
(5) Also the benefits of your treatment.
(6) Alternative treatments that might be available to you (and their risks and benefits).
(7) Risks and benefits to you of doing nothing at all.
Patients, in turn, should listen carefully to what they are told, ask questions if they do not understand the doctor’s explanation, and make sure that they know what it is they are agreeing to.
In Texas, a patient is often asked to give his or her informed consent by signing a preprinted form setting forth all of this information. This form exists for many common treatments and procedures (particularly surgical procedures) so that doctors can be sure that they have not left anything out.
Cases involving less common kinds of treatments
In other cases involving less common kinds of treatments and procedures, there is no pre-printed form, and the doctor must sit down with the patient. To take the time to sit and provide the information that is needed to make an informed decision. A patient has a right to consent to medical treatment, and because of that a doctor who fails to get a patient’s informed consent may be sued. Legally, the doctor may be liable to the patient for battery, even if the treatment is successful.
Sometimes a patient is unable to give informed consent.
Sometimes a patient is unable to give informed consent. For example, an unconscious car accident victim cannot tell the ER doctors that it is okay to treat them. Other patients may not be able to give their informed consent even if they are conscious.
Small children or even people with mental problems may be unable to fully understand what the doctor is telling them. Therefore, cannot give their consent. In cases such as these, the law still requires informed consent, but it comes from a different source. In cases involving minors or those with mental problems, doctors must obtain consent elsewhere. However, doctors can get the informed consent needed from the patient’s parent or guardian.
The law implies consent if an adult is unable to provide it.
There are times where an adult is unable to give informed consent because of a medical condition. For those reasons, the law implies consent to treatments a reasonable person would have consented, had they been able to. This provision enables ER doctors to perform emergency surgery to save the life of the unconscious accident victim.
Although informed consent cases are less likely to make the evening news than the surgeon who amputated the wrong leg. They are just as serious as any other health care liability case.
If you believe that you have been the victim of a treatment that was provided without your informed consent for healthcare, contact our office and we will be happy to discuss the matter with you at no charge.