If you were not given proper information prior to medical treatment, and were injured as a result, you may have the right to collect compensation. Contact our attorneys at Edelstein, Martin & Nelson for a free consultation.
Before a patient undergoes a treatment or procedure that their physician has recommended, they must first be fully informed of the potential dangers involved with the proposed course of action. The process of advising patients about potential dangers is referred to as obtaining informed consent. When a physician fails to properly caution about the dangers or fails to obtain informed consent, any patient who sustains injuries, as a result, most likely has a viable medical malpractice suit.
The experienced Pennsylvania medical malpractice attorneys at Edelstein, Martin & Nelson, LLP want to make sure you understand the concept of informed consent to help you determine whether or not you have ground for a medical malpractice claim.
What Does “Informed Consent” Mean Exactly?
All medical procedures and treatments come with potential risks involved. Due to these possible dangers, physicians are required to provide their patients with any and all necessary information concerning the dangers involved with their proposed course of action so the patient can make a decision based on the full scope of facts involved in their treatment plan. When a physician informs the patient of their proposed treatment and any associated risks, this is known as getting their informed consent.
Except in cases of emergencies in which the patient is unconscious or otherwise not able to give consent, physicians typically give their patient a consent form to sign. This consent form outlines the possible dangers of the proposed treatment. Merely signing a form, however, does not indicate that the patient has given their informed consent. Physicians also talk to the patient about the procedure they have recommended and clarify the risks so they have a full understanding of them before they agree to undergo the procedure or receive the treatment.
Medical Malpractice vs. Informed Consent
Cases of informed consent and cases of medical malpractice are alike in many ways and very different in others. It is not uncommon for a lawsuit to include both medical malpractice and informed consent claims.
In cases of informed consent and medical malpractice, a Pennsylvania informed consent attorney will have to:
- Supply a certificate of merit
- Employ expert witnesses such as a medical professional
- Show that informed consent was not given
- Prove that a failure to provide full and accurate information was a significant factor in your choice to receive the treatment. This means that if you had been provided with full and accurate information, you would have chosen a different treatment or procedure, or perhaps none at all.
- Have an expert witness provide testimony regarding the dangers of the procedure, any viable alternative procedures, and the dangers of those options as well.
The main difference between a standard medical malpractice claim and an informed consent claim is that the lawyer is not required to show that a lack of informed consent resulted in any injuries. This is due to the fact that, in Pennsylvania, claims of informed consent are based on the legal concept of battery, which is an intentional tort. Standard medical malpractice claims are centered around the legal concept of negligence and, as such, are subject to an entirely different burden of proof.
In medical malpractice and informed consent cases, the reasonable person standard is the benchmark for deciding whether or not you were given informed consent. This standard is applied in cases where a duty of care was owed and may have been violated. It will be used to determine if a reasonable person in the same or similar circumstances would feel that they were given informed consent based on the information they were provided with beforehand.
In cases of medical malpractice, an attorney will need to show that:
- The physician owed you a duty of care
- The physician violated that duty by disregarding the accepted medical standards of care
- The violation was the immediate cause of your damages
What is a Certificate of Merit?
Pennsylvania law states that, in order to move forward with a medical malpractice lawsuit, you must first file a certificate of merit that was issued by a qualified, licensed medical professional. A certificate of merit confirms that a competent professional has evaluated your medical malpractice claim and determined that it is reasonable to feel that the care you received fell outside of acceptable medical standards and led to your injuries and damages.
With our extensive resources and team of medical professionals, we will have your case examined by a relevant independent expert and answer any questions you may have about moving forward with your lawsuit.
Does Informed Consent Absolve Liability?
Informed consent indicates that a doctor is required to inform you of every possible complication, benefit, risk, and alternative of any suggested non-emergency treatments, such as a surgical procedure. This is an extremely vital part of any patient-doctor relationship since it allows you to make a truly informed choice that you feel is in your best interests.
Pennsylvania informed consent law states that doctors themselves are required to get the informed consent of their patients. The task may not be entrusted to anybody else. Regrettably, many patients think that they are not entitled to seek legal action simply because they signed the consent form. A signed form, however, does not release the healthcare provider from liability for their negligence. Depending on the specific facts of your case, you might still be eligible to pursue a malpractice lawsuit even if you signed a consent form.
A Pennsylvania lack of informed consent lawyer from the law firm of Edelstein, Martin & Nelson, LLP can examine the details of your potential case and advise you on the best way to proceed.
How Much Time Do I Have to File a Pennsylvania Lack of Informed Consent Claim?
Generally speaking, Pennsylvania’s statute of limitations for claims of medical malpractice is two years from the day you received your injury. Should you fail to file your case before this deadline expires, you will be barred from collecting any financial compensation for your damages. There are a few exceptions that allow the deadline to be delayed such as if you were unaware of your injury until a later date or if the lack of informed consent involved someone under 18. It is important to talk to a reputable lawyer as quickly as possible after the incident so they can determine when the statute of limitations lapses according to your specific set of circumstances.
What Kinds of Risks Have to be Disclosed?
Not every single potential risk has to be clarified by your physician. They are, however, required to outline the essential and known dangers of any given treatment or procedure. Two different standards are used when determining whether or not a physician was obligated to disclose a specific risk. In some states, the standard is measured by whether other physicians with the same level of education and experience would have informed a patient in the same or similar situation of the potential danger. Pennsylvania, as well as several other states, instead use a patient-centered standard and considers whether or not a reasonable patient in the same or similar circumstances would have opted to not undergo the procedure or medical treatment had they been informed of the risks involved.
Pennsylvania law requires courts to take into account whether or not a reasonable patient with the same medical history and condition would have opted to not receive the medical treatment if they had known of the risk that the doctor failed to disclose. Doctors are also required to inform their patients about any realistic, alternative procedures and treatments even if there is only one that they recommend.
In addition to all of this, state laws also require medical malpractice claimants to file a certificate of merit along with their lawsuits or no later than 60 days after they have filed their formal complaint. As previously mentioned, this is a certification verifying that their case has been reviewed by a medical professional who is able to testify that the actions taken by the physician did not meet the appropriate medical standard of care. In cases that involve a lack of informed consent, the healthcare expert needs to be ready to testify that a reasonable patient would probably have turned down the suggested procedure or treatment had they been fully informed of the dangers, or that the physician failed to inform them of viable and reasonable alternative treatment methods.
Are There Any Exceptions to Informed Consent?
Yes, there are a few exceptions to the informed consent requirement in Pennsylvania. The most notable of these exceptions occurs during a medical emergency when a doctor must act quickly to save a patient’s life and there is no time to explain the dangers involved in the procedure. For instance, if an unconscious patient is admitted to a hospital emergency room after sustaining severe injuries in a traffic collision, they would qualify as an exception. The attending physician will perform any surgery necessary to save the victim’s life rather than waiting around to see if they regain consciousness so that the potential risks can be explained to them.
Another exception to receiving a patient’s informed consent applies in the event that a patient is so frail that their doctor knows that they are going to reject any necessary medical treatment due to their distress. For instance, a patient with a brain tumor that is life-threatening if left untreated but comes with a risk of permanent paralysis if it is extracted might be given ambiguous descriptions of the dangers involved in the removal process because the removal is necessary to save the patient’s life. Anytime a physician decides that, due to the fragility of a patient, vague explanations of any potential risks are acceptable, they will still be expected to provide a straightforward and objective reason why they chose to not disclose the dangers.
What if the Doctor Performs a Different Procedure Than the One I Consented To?
For any procedure that doesn’t meet one of the exceptions listed above, a doctor is absolutely required to obtain informed consent. If a physician chooses to perform a procedure other than the one for which the patient gave informed consent, the patient could be eligible to pursue a claim of medical malpractice due to the lack of informed consent for the alternative procedure. Keep in mind that, in this scenario, you would only have a legitimate claim if the second procedure was performed in error or was unnecessary.
The patient will not have a valid claim if the doctor uncovers a serious medical problem while performing the intended procedure for which they were given informed consent and then performs a second procedure in order to fix the recently discovered medical issue. For instance, if a surgeon is performing an operation on a patient’s right leg and, during the course and scope of that operation, the surgeon discovers a blood clot, the patient would not be able to file a claim for removing the clot even though the surgeon did not obtain the patient’s informed consent for the extra procedure.
Talk to an Experienced Pennsylvania Medical Malpractice Attorney
When a physician fails to provide their patient with the adequate, straightforward information they need in order to make an informed decision that serves their best interests, then the healthcare professional might be found negligent for violating the duty of care they owed to their patient. In these cases, the physician will be responsible for any monetary damages caused by the procedure or treatment that was performed without informed consent. In situations that involve an egregious display of negligence, there could be more parties such as other doctors, nurses, or the hospital itself, who are also liable for the injuries the patient endured.
In informed consent cases, the damages are usually sought from the insurance company of the negligent doctor. These companies have teams of lawyers who are fully prepared to contest these kinds of claims because they know exactly how hard it can be for a patient to prove that they would never have consented to the procedure or medical treatment if they had been given all of the necessary information concerning the risks involved. An insurance company might also claim that the injury the patient sustained was not the direct consequence of the physician failing to get informed consent.
If you were seriously injured or you lost a family member in a procedure or treatment that was performed without informed consent, you need an attorney with years of experience in successfully handling medical malpractice claims. Schedule your free consultation with the Pennsylvania personal injury attorneys at Edelstein, Martin & Nelson, LLP right away by calling (215) 731-9900. You can also call us toll-free at (800) 300-0909 or fill out the form on our website.