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How Informed Consent Impacts Suing for Medical Malpractice

Downs, McDonough, Cowan & Foley April 27, 2023

Visiting a doctor for an issue can be stressful. You never know what is going to be diagnosed, or what the treatment, if any, might be. Medical professionals, however, must obtain your “informed consent” if they recommend a specific test, including an MRI, or a certain path of treatment or surgery.  

Informed consent means that medical professionals must explain the ramifications and possible outcomes of treatment. For instance, if they recommend an MRI and you’re claustrophobic, you may undergo extreme stress and anxiety while in the machine. Or if you’re facing surgery to remove cancerous cells, the physician must explain what that entails and what the alternatives may be, good and bad.   

Informed consent can be implied or expressed. If you go in for a flu shot, generally speaking, you are assumed to be giving your implied consent. You’ve determined that getting the shot is better than not getting the shot. When it comes to more complex or serious medical options, you may be asked to sign a form giving your consent.  

The form is thus your express consent, but the physician or other medical professional is still obligated to explain everything to you. They can’t just throw the form in your face and demand you sign it or brush it off as something routine and meaningless.   

If you or a loved one has suffered from a recommended medical treatment or procedure in or around Durango, Colorado, and you have questions about whether your informed consent was obtained and if that can lead to a medical malpractice lawsuit, contact the legal team at Downs, McDonough, Cowan & Foley, LLC.   

We offer accessible and compassionate consultations and will advise you of all your legal options if you feel you have been harmed by the medical assistance you sought. We also serve clients in Telluride, Pagosa Springs, Cortez, and The Four Corners. 

The Legal Principle of Informed Consent

Informed consent refers to a physician’s or medical group’s responsibility to explain your options to you when proposing treatment plans, testing, or surgery. You need to be told of your options, basically. According to the U.S. Department of Health and Human Services (HHS), informed consent is required for:  

  • most surgeries  

  • most advanced or complex medical tests and procedures  

  • cancer treatments such as radiation and chemotherapy  

  • opioid and corticosteroid and other high-risk treatments  

  • administration of most vaccines  

  • certain blood tests, including genetic testing  

To obtain a patient’s informed consent, the medical professional must explain what the procedure recommended entails, what its risks, side effects, or consequences might be, what refusing the option might entail, and what alternatives there are, including their risks and potential consequences. As mentioned earlier, informed consent can be implied or expressed.   

To give consent, you must be of a competent mind and 18 years of age or older. Minors must get their parents to give their consent. In an emergency when you are, for instance, taken unconscious to an emergency room, the medical staff may have to proceed with a course of treatment, including surgery, to save your life, but your consent would not be possible. In this case, they can proceed without your consent.  

Also, routine medical analysis and check-ups do not require any informed consent. This includes taking your blood pressure, listening to your heart, checking your reflexes, and doing other routine tests. 

Can You Sue for Medical Malpractice in Absence of Informed Consent?

The lack of an informed consent document or implied agreement with your healthcare provider may not be enough for you to win a medical malpractice claim. To prevail in such a claim, you will need to prove that your physician or medical group was negligent in your treatment.   

To do this, you generally must show that you suffered additional harm as a result of the testing, treatment, or surgery or experienced an exacerbation of your existing health problem. Also, if you undergo continued pain and suffering after the treatment, procedure, or surgery, that can be a basis for showing that you suffered from negligence. 

Which Factors Would Be Considered in Determining Whether You Were Properly Informed?

If you end up in court over a medical malpractice claim based on lack of informed consent, you would need to have expert testimony that other doctors would have advised you of the risks that resulted in your harm or suffering. You will also need to show that, had you been sufficiently informed of the risks and possible outcomes – and alternatives – you would have made a different choice. 

Seek Knowledgeable, Experienced Legal Assistance

If you or a loved one has suffered because of a recommended course of action by a physician or medical group in or around Durango, Colorado, contact us at Downs, McDonough, Cowan & Foley, LLC.   

We have the knowledge and experience to assess what’s happened to you and recommend the proper legal steps, including a medical malpractice claim if warranted. We will stand by your side and help you exercise your rights under the law.