You may have heard before that doctors are required to receive “informed consent” from their patients. But like many medical terms used by doctors and nurses, everyday people may not completely know what “informed consent” means and why it’s required. In this blog post, we’ll explain a few of those basics and how informed consent (or a lack thereof) can affect a legal case for medical malpractice in Philadelphia.
What is Informed Consent?
Informed consent is more of a process than a single event, and in short, it means that your doctor has taken steps to keep you informed of all the risks associated with your medical care, and most importantly, that you have agreed to the medical care you’re receiving. Almost always, patients are required to sign a document indicating that they have been fully informed and that they otherwise consent to the procedure being performed.
In Pennsylvania, doctors or delegated members of their medical staff are required to obtain a patient’s informed consent before performing generally all types of medical procedures. That means that before a physician performs a surgery or other procedure, the performing physician or a nurse, physician’s assistant, or nurse practitioner in the physician’s office must speak to the patient and obtain informed consent. During that conversation, the medical provider must ensure that the patient is fully informed of the risks, side effects, and possible alternatives to the surgery or procedure.
Under Pennsylvania law, doctors are required to obtain informed consent before conducting the following procedures, which generally encompasses all surgeries and non-minor procedures:
- Performing any surgery, including administering related anesthesia
- Radiation or chemotherapy for cancer treatment
- Blood transfusions
- Inserting a medical device or appliance
- Administering or using an experimental medication or device
However, the rules regarding informed consent do not apply to emergencies, as doctors are empowered to treat patients in emergency settings without obtaining their express consent.
How Does Informed Consent Impact a Medical Malpractice Claim?
If a doctor fails to obtain your informed consent before performing a surgery or procedure, that doctor has violated your medical rights, and more importantly, that doctor has violated Pennsylvania law. You may have a valid claim for medical malpractice, but Pennsylvania’s informed consent statute imposes some specific requirements on the case.
First, testimony from a medical expert is required to prove that the procedure in question is the type of procedure covered by the statute, but as previously stated, the statute is generally encompassing, and so this requirement isn’t a big hurdle to overcome.
Second, though, you must be able to prove that the information you did not receive from your doctor would have been “a substantial factor” in your decision whether to go forward with the procedure. Generally, this means that if you had all the information, you would have decided not to go forward with the procedure. Sometimes, this part can be difficult to prove in court.
Lastly, the statute also provides that if a doctor or medical provider knowingly misrepresents their credentials or experience to a patient, that the patient can pursue liability under the statute.
When Should I Contact an Attorney?
If you believe that you or a loved one has received a medical procedure without the doctor or hospital obtaining your informed consent, you should speak to a lawyer as soon as possible. Our team at Youman and Caputo is proud to offer free consultations for these types of cases – contact us today.