The failure to obtain informed consent for medical treatment or procedure can give rise to a medical malpractice claim in some situations. In order to establish informed consent, the following steps must be followed:
- The patient is told about the possible risks and benefits of the treatment.
- The patient is told about the risks and benefits of other treatment options, including no treatment.
- The patient has the chance to ask questions and receives adequate answers.
- The patient has time to discuss the plan with family or other doctors.
- The patient has sufficient information to make a decision in his or her best interest.
- The patient adequately communicates his or her decision with the doctor.
As we recently reported, changes in the law regarding informed consent standards could have a detrimental impact on patient care and a patient’s right to recover money damages for medical malpractice. In a recent Wisconsin medical malpractice lawsuit, the jury found that the doctor had violated informed consent obligations by failing to provide a patient with “alternative medical diagnoses” that would have led her to pursue other treatment.
According to the Journal-Sentinel, the case hinged on an informed consent law that was relaxed to favor physicians last year. Under the new law, the bar for what a doctor must tell a patient regarding medical treatment was lowered and, had the new law been in affect at the time the patient was treated, she may not have won her medical malpractice case – despite the fact that her loss of limbs were the direct result of the defendants’ failure to inform her of possible diagnoses for her condition.
Issues regarding informed consent can also arise in the context of “ghost surgeries” – when a surgery is performed by someone other than the surgeon the patient thinks will be performing the surgery.
According to the Chicago Tribune, several lawsuits have been filed in recent years indicating that “ghost surgeries” might be far more common than expected. For instance, a New Hampshire patient filed a medical malpractice lawsuit after her heart was damaged in a cardiac surgery performed by a less experienced doctor instead of the renowned, triple board-certified cardiologist whom she had scheduled. The Chicago Tribune reported that a 2004 lawsuit was filed against Rush University Medical Center and a group of fellow surgeons accusing them of Medicare fraud in connection with operations that were performed by unsupervised medical residents, and, in 2012, a patient accused a urologist at Northwestern Memorial Hospital of not performing her kidney operation has promised.
According to patient advocates, surgical switches are not uncommon. In some cases, the surgeon isn’t present at all and the procedure is performed by a different doctor and, in other cases, the scheduled surgeon only appears in the operating room after the procedure is performed.
Contact a Medical Malpractice Lawyer
If you did not give informed consent or your doctor failed to provide adequate information regarding medical treatment, you may have a cause of action for medical malpractice. Contact the Chicago medical malpractice attorneys at Cogan & Power at (312) 477-2500 for a free consultation to discuss your legal rights and options. If you cannot come to our offices in downtown Chicago, we will come to you. And because we take cases on a contingency basis, you will not pay any fee unless we get you compensation.