Does 'informed consent' release your physician from liability?

If you have any kind of serious or chronic health condition, you want your doctor to be candid about the risks you face during any course of treatment or surgical procedure.

Unfortunately, doctors aren't always good about making sure that patients fully understand the risks they face -- although they will make sure that they get their patients to sign a "consent for treatment" form so that they can later claim that they aren't liable if something goes wrong.

Well, consent isn't really "informed" if your doctor took that part of the treatment process in a cavalier manner. Here are some times when a consent for treatment form may not protect your doctor against a medical malpractice claim:

1. You were handed the form and told to sign it with no real explanation

If a form was stuck under your nose, a pen handed to you right before surgery and you were told to "sign here" so that things could get moving, that's not a meaningful discussion of your risks. Similarly, an informed consent that was signed during intake before you were even seen by the doctor -- which has been known to happen -- can't really hold any value.

2. You were sedated when you signed the consent form

If you've been given something to calm your nerves before a procedure -- which is frequently done in pain clinics before spinal blocks -- it's difficult for a physician to assert that you had full capacity to understand your risks.

3. You were scared off by the warnings -- but nobody told you the risk of not going through with treatment

Physicians are responsible for telling you both sides of the equation so that you really are making an informed decision. Sometimes, physicians will rattle off a list of potential drawbacks or risks to a procedure like it's just a grocery list -- then get frustrated when the patient gets scared and decides against treatment. They may not take the time to explain that the risk of an adverse event with treatment is small, but the consequences of not going through with the treatment are huge. If your physician didn't document your informed refusal, that's another potential issue.

Find out more about your legal rights regarding informed consent and medical malpractice today.

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Vincent J. DeSalvo, Attorney at Law
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