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Failure to Obtain Informed Consent

Medical malpractice claims often arise because a health care provider failed to obtain informed consent from you prior to performing a medical procedure that caused you harm. If you were injured as the result of a procedure you did not consent to, contact a medicalmalpractice lawyer of The Cates Law Firm, LLC at 618-277-3644 or through our online form.

Our legal team is skilled in helping individuals hurt by medical provider’s carelessness and recklessness.

Understanding Informed Consent

Your medical provider is legally required to get your permission (or your legal representative’s permission if you are a minor, unconscious, or deemed mentally incompetent) before moving forward with a medical procedure or treatment. This is both an ethical and legal concept. The ethical basis of informed consent is that you have the right to decide what to do with your body, and the only way to be able to make a fully informed decision is to be told the most likely, and sometimes the rare, benefits and negative consequences of a particular medical service or procedure.

Once you understand how a procedure or treatment could help you or harm you, you can decide whether to go through with it or not. Over the years, this has become a legal requirement. The Illinois Medical Patient Rights Act, 410 ILCS 50/1 – 50/7 requires informed consent before all medical procedures except for those that are taken during an emergency situation to save your life.

What Informed Consent Looks Like

There are some precise requirements to acquire proper informed consent. If they are not met, then your physician failed to meet his or her obligation to get informed consent and may be liable for medical malpractice.

Informed consent should include:

  • A discussion with your physician, not a representative of the physician
  • Your diagnosis
  • An explanation of the recommended treatment or procedure and its intended purpose
  • The risks and benefits of undergoing the proposed medical service or procedure
  • The risks and benefits of not receiving the treatment or procedure
  • Any viable alternatives to the proposed medical service or procedure
  • The risks and benefits of the alternatives

You will be asked to sign a form stating that you were properly informed regarding the medical service. This document will need your name, signature, and the date. It will also have the physician’s or facility’s legal representative’s signature.

There can also be implied informed consent, which is a little different. Implied consent relates to your physician’s ability to deal with issues that arise during a treatment or procedure. For instance, if during surgery a complication arises, you implied consent to your physician doing what is necessary and appropriate to address that complication and complete the surgery. However, you do not implied consent to an additional procedure along with the surgery. For example, if the doctor finds you have a tumor while performing surgery for another reason, they cannot make the executive decision to remove the tumor unless it is life-threatening at that very moment.

Common Causes of Failure to Obtain Informed Consent

There are multiple ways in which physicians fail to fully obtain informed consent; however, the most harmful include failing to explain the:

  • Nature of a proposed procedure or treatment
  • Reasonably foreseeable risks and benefits of a service
  • Alternatives to the proposed procedure or treatment
  • Reasonably foreseeable risks and benefits of alternative services
  • Reasonably foreseeable risks and benefits of not undergoing the proposed procedure or treatment

One of the most important aspects of informed consent is fully explaining the risks of a procedure. You have the right to know what could go wrong or how you could be hurt before you agree to a procedure or treatment – or decide to not undergo the service. A doctor does not have to tell you every possible risk that could ever occur, but they do need to discuss reasonably foreseeable risks, even if that includes ones that are usually rare. If you are not made aware of a potential risk and you end up with an injury you should have known was possible, then you may have the right to bring a medical malpractice claim.

Your Legal Options After Your Medical Provider’s Failure to Obtain Informed Consent

You may have the right to bring a medical malpractice claim against your medical provider if you were injured after they did not properly obtain your informed consent. You cannot bring this type of claim if the physician failed to obtain informed consent but then the procedure went perfectly and you only benefited. You must have suffered an injury from a medical service or procedure that you can be compensated for and which was related to a risk you were never informed of.

To bring a lawsuit based on lack of informed consent, you and your Illinois medical malpractice attorney will have to prove:

  • The medical provider had a duty to obtain your informed consent before performing a service or procedure
  • The medical provider failed to do so, commonly from failing to fully discuss the risks of the proposed treatment or procedure
  • You would not have agreed to the proposed treatment or procedure if your provider had informed you of all of the risks
  • You were harmed due to the treatment or procedure

The third element is often where medical malpractice claims fail. If the defendant of your claim can show you would have agreed to the treatment or procedure even if you had known all of the risks, you will typically not succeed in your claim.

Illinois Medical Malpractice Lawyers of The Cates Law Firm, LLC Can Help You

If you agreed to a procedure or treatment and suffered an injury your doctor should have warned you about, or if you did not agree to a procedure that was performed without your consent, do not hesitate to reach out to us at CatesMahoney,LLC. We are ready to represent you in a medical malpractice claim and help you recover compensation for your medical expenses, pain and suffering, and loss of a normal life resulting from your injuries. We have experience helping individuals who have suffered a wide range of injuries from all types of negligent medical services.

Call us today at 618-277-3644 or use our online contact form to schedule an appointment.