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Lack of Informed Consent in a Medical Malpractice Case

Mar 15, 2015 | Medical Malpractice

When your doctor does not tell you that you could suffer a complication that you are suffering now after going through the medical procedure, then would that be a valid basis for filing a medical malpractice case. The answer is maybe. Lack of informed consent means failure on the part of the doctor to provide sufficient information, so that the patient can take an educated decision. However, in most instances, lack of informed consent cannot be the only basis for filing a lawsuit.

Doctors must reveal the risks

It is obligatory for doctors to tell their patients all the information required, so that patients can reasonably decide whether the procedure is right for them. If patients do not have this information, they cannot possibly make an educated decision about the prescribed procedure, and they cannot tell if the procedure is right for them.

Typically, a medical malpractice attorney will meet many clients, who will vehemently claim that their doctor never told them that they could ever have the particular complication from the procedure. However, the doctors will always claim that they always inform their patients. Hence, this becomes a classic he-said, she-said situation. If this is all that the medical malpractice case is resting on, then there is almost no chance of winning. This is because juries in the state of New York tend to side with doctors.

According to statistics, 95% of valid medical malpractice cases in New York are settled before the trial. Out of the remaining 5% that go trial, two-thirds are won by doctors and hospitals. Hence, the injured victim is at a significant disadvantage from the start. It is not that every case is lost, but it is always arduous and challenging.

Lack of informed consent cannot be the sole basis for a lawsuit

You cannot submit a medical malpractice case solely based on lack of informed consent because the jury will have to decide, whom they like better. Do they believe the doctor, who claims that he had informed the patients of all the risks, including the particular complication? Alternatively, do they believe the patient, who says the doctor did not say anything about the particular complication?

With every procedure that a doctor does and with every medication that a doctor prescribes, there are always certain risks associated with them. The biggest risk is that the patient could die. Now what would happen if doctors started telling patients that if they did the procedure or took the medication, there was a chance of them dying? In such a scenario, hardly any patients would have surgery or take medications. Even though, chances of death may be extremely small, death is a significant risk that nobody would want to take.

The act of signing your name

In almost all cases, the doctor would have informed the patient about the risks, but the patient will feel that the doctor had left out the particular complication that has occurred. The fact is, every patient has to sign a consent form, and all the risk will be mentioned in this form.

Hence, the bottom line is doctors usually inform their patients about the likelihood of most complications. They may not go into detail about every possible complication; however, that would not be a valid basis for filing a medical malpractice case.