Understanding Informed Consent


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Anyone who has ever been to a doctor has probably seen a form relating to informed consent. But what is informed consent? What happens if you are asked to consent to something that you do not understand and are later injured?

In cases where there are larger possible risks, it is customary for a doctor to ask you to sign an informed consent form. This is little more than a written acknowledgment that you have been advised of the potential risks associated with your treatment and that you agree to accept those risks. In reality, it is a means of limiting a doctor's potential liability should something go wrong in your treatment or should you not respond to a proposed form of therapy.

Unfortunately, it is not uncommon for these forms to be provided to a patient well before any sort of treatment options have been discussed. Even after your first talk with your doctor, you may have only a general idea of the treatment plan. As a result, “informed consents” rarely are. For informed consent to be valid, the following steps must be followed:

1. You are told or given information about the possible risks and benefits of the treatment;
2. You are told about the risks and benefits of other options, including not getting treatment;
3. You have the chance to ask questions and get them answered to your satisfaction;
4. You have had time to discuss the plan with family, friends, or someone who can advise you about the treatment;
5. You are able to use the information to make a decision that you think is in your own best interest;
6. You share your decision with your doctor or treatment team.

If any of these steps do not occur, the consent may not be an informed one, and you may not have accepted the risk of any negative consequences should they occur.

Remember, when signing anything you may be creating a legal document. A proper consent form will name the specific procedure or treatment to be done. The rest of the form may be very general, stating only that you have been told about the risks of the treatment and other available options. Or it may be very detailed, outlining what the risks are and possible alternative options.

Generally, in order for one to assume the risk of any activity, that activity must be clearly spelled out so that the person assuming the risk and agreeing to waive the other person's liability clearly understands what is at stake. However, many consent forms are laid out in a blanket format, simply saying that a patient agrees to accept the risk of any procedure or treatment. This will often be inadequate to shield a doctor from liability.

A doctor or nurse must make every effort to be sure the patient understands the purpose, benefits, risks, and other options of the test or treatment to be administered, then they must get the patient’s consent before starting. In some cases, even a simple blood test or an injection (“shot”) requires written consent from the patient, given religious objections to medical treatment, the possibility of infection, etc. As long as adult patients are mentally able to make their own decisions, medical care should not begin unless they give informed consent, or the doctor may be exposed to liability, including possibly liability for not obtaining even basic consent for the procedure.

If the patient is under age, has a serious mental disability, or cannot give consent, then the parent, legal guardian, or a person authorized by the court must give consent before treatment can start. This is usually a close family member who has reason to know what the patient would want, like a spouse, parent, or adult child.

If you believe you or someone you know has been subject to a medical procedure or treatment for which they did not consent or did not receive sufficient information to provide informed consent, and suffered harm as a result, you may have a claim for which you can obtain relief. You should contact an experienced personal injury attorney to assist you with your claims.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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