What Is Informed Consent?

As a patient at a hospital or doctor’s office, you have the right to give your informed consent before undergoing any treatment or procedure. If a physician or surgeon fails to get your informed consent, it may be medical malpractice. Find out if and when you have grounds to file a medical malpractice claim in Texas for lack of informed consent.

What Does Informed Consent Mean?

Informed consent is a patient’s agreement to undergo medical treatment after learning all of the essential information about the treatment. If a patient does not agree to a procedure, he or she has not given his or her consent. If a patient gives consent but does not fully understand the risks, benefits and alternatives, the patient has not given his or her informed consent.

To obtain informed consent, a doctor must impart full knowledge of the recommended treatment to the patient. Full knowledge means all of the possible consequences and risks of the procedure, as well as its possible benefits. It also means a list of potential alternatives, including holistic treatments. If the patient is a minor or incompetent, his or her authorized medical proxy must give informed consent instead.

A patient in Texas must give informed consent prior to any type of surgery, chemotherapy, anesthesia, device implantation, blood transfusion or experimental medication. Informed consent is critical to proper patient care, as it is a patient’s right to decide what is best for him or her. If a patient believes a treatment to be too risky, he or she has the right to refuse that treatment. No medical practitioner can breach this patient right.

When Is Lack of Informed Consent Medical Malpractice?

Informed consent is both a legal and an ethical obligation. If a medical procedure is performed without a patient’s knowledge or informed consent, it is medical malpractice. Medical malpractice is when a professional in the medical field violates the industry’s standards of patient care, resulting in harm to a patient. Lack of informed consent is just one example of medical malpractice that could give a patient the right to file a civil lawsuit against the at-fault practitioner.

If a doctor or surgeon oversteps a patient’s right to give informed consent, that practitioner will be liable (legally responsible) for any injuries or illnesses that patient suffers as a result. This is because the patient was not properly granted the right to give or withhold consent to the treatment. Overriding this requirement is not fair to the patient and violates the standards of care in the medical industry.

What Elements Must Be Proven in an Informed Consent Case?

If an injured patient files a medical malpractice lawsuit for lack of informed consent, the patient or his or her attorney must prove the case against the defendant to recover financial compensation. The burden of proof rests with the plaintiff, not the defendant, to establish fault as more likely to be true than not true.

Establishing fault in a medical malpractice case based on lack of informed consent takes clear and convincing evidence of four main elements:

1. A doctor-patient relationship existed, giving the doctor a duty to uphold certain medical standards of care.
2. The doctor applied an unauthorized medical treatment to the patient, meaning the patient did not give his or her informed consent.
3. The patient suffered injuries or compensable losses due to the treatment.
4. If the patient had full knowledge of the risks of the procedure, he or she would have elected not to proceed and thus would have avoided the injury.

Failing to obtain informed consent for nonemergency medical care is a civil tort, or wrongdoing, that can make the doctor or hospital financially responsible for the patient’s injuries or harm. This means the physician’s insurance provider will have to pay money damages for the victim’s related medical care, pain and suffering, lost wages, lost quality of life, and other losses.

To find out if you have grounds for a medical malpractice case related to informed consent, consult with an attorney in Houston today.