Can I sue for medical malpractice if I signed a consent form?

Q:

Can I sue for medical malpractice if I signed a consent form?

A:

Prior to performing surgery or undergoing a serious medical procedure, a doctor must provide information to their patients regarding the risks, benefits and alternatives to surgery. This is done through a medical consent form.

Specifics for an Informed Medical Consent Form

Although state laws vary with regard to informed consent, generally a medical consent form will identify the nature of the procedure and known risks, including loss of organ function, disfigurement, brain damage or death.

Ideally, the doctor should review the informed consent form with the patient and discuss the patient’s diagnosis, benefits of the treatment, alternatives of the treatment, the purpose of the treatment, the risks of the treatment, the costs of the treatment, and the likely outcome if the patient decides not to follow the doctor’s prescribed treatment plan.

Prior to providing informed consent, the patient must also have all the necessary facts to make an informed decision. They must also have the mental and rational ability to make the decision. Only after these requirements have been met, and the patient’s questions have been answered, should the patient sign the informed consent form.

Signing the Consent Form and Medical Malpractice Claims

According to a 2016 study conducted by researchers at John Hopkins, it’s estimated that more than 250,000 Americans die each year from medical errors. If this estimate is accurate, it means that deaths from medical errors ranks just behind heart disease and cancer.

Medical malpractice claims can generally be filed by patients if they can prove that their injuries were the result of a doctor’s negligence, assuming that the doctor had a duty of care toward that patient, the patient suffered injury or loss, and the injury or loss was caused by the doctor’s negligence.

What happens, however, if a patient was injured but they have signed a consent form? Does this eliminate their right to file a medical malpractice claim against the doctor? No; in fact, there are several instances where signing a consent form will have no bearing on a patient’s ability to file a medical malpractice claim against a doctor. Let’s review several of these examples below.

1. The consent form did not meet state or federal requirements.

State statutes and federal laws pertaining to informed consent have changed over the years, but currently every state has some type of legislation that requires informed consent prior to certain types of medical treatment. Doctors who fail to provide adequate informed consent can be held liable for negligence.

Not only must these requirements be met, but doctors must make sure that the consent form is in their patient’s medical records prior to surgery, the doctor reviewed the form with their patients, and the information contained in the consent form was presented to the patient in a language they understood.

Specific features of a consent form include the patient’s diagnosis, the nature and purpose of treatment, the risks and benefits of treatment, potential alternatives to surgery, the risk and benefits of the alternative, and the risks and benefits of not undergoing the recommended treatment.

2. The doctor and consent form failed to provide an adequate explanation of the complications.

The informed consent process allows doctors to meet with their patients and establish a strong relationship with them. Making an informed decision requires doctors to thoroughly explain a medical procedure, but it also includes time for the patient to ask questions and have the doctor provide accurate and thorough answers.

If a consent form does not identify a known complication, and a doctor fails to properly identify or describe a known and common complication, a patient who suffers this specific complication may be able to argue that they were not given the opportunity to give their informed consent because they did not have all the facts regarding the procedure.

3. The patient lacked the ability to provide consent.

Assuming that the consent form met regulatory standards and the patient signed the consent form, patients are generally barred from suing for lack of informed consent. Exceptions can exist, however, if the patient was forced to sign the form or the patient was not mentally competent to sign the form due to dementia, mental incompetence or intoxication.

4. The doctor provided negligent or substandard medical care.

Patients who sign a consent form are generally agreeing that they understand the normal risks of a medical procedure. Injury or side effects of surgery, however, are not the same as injury from the actions of a doctor who provides substandard or negligent care.

For example, common side effects from knee surgery can include pulmonary embolism, torn blood vessels or persistent swelling. Negligent actions, however, can include a doctor performing surgery while intoxicated and making an error.

Bottom line: Regardless of whether a consent form has been signed, patients have a right to expect care that is comparable to what other doctors would have provided in a similar situation. The doctor also has the legal obligation to provide information that allows the patient to make an informed decision.

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Whether you're facing a legal issue or just seeking information, Justipedia aims to be your most trusted resource for legal information on the Web. With the help of legal professionals across the country, we put the law in plain language to help answer your top legal questions.

Justipedia was founded by Internet veterans Cory Janssen and Mitchell Allen. Janssen founded Investopedia.com and grew it one of the largest investing sites on the Web. Allen is an author, speaker and the founder of LeadRival, the leading provider of pay-per-action advertising in consumer legal services.

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