When you check into a hospital for a high-risk procedure, the hospital or the treating doctor will be required to get consent from you or your guardian before proceeding with the intervention. The consent comes in the form of signing a consent form, which acts as evidence of agreeing to have the procedure performed on you.
The consent form itself doesn’t contain much information. Most hospitals use templates with basic information and a declaration that the patient understands the risk and potential complications and agrees to undergo the procedure knowingly. Those uncertain should consider speaking to attorney Russell Berkowitz of Berkowitz Hanna Malpractice & Injury Lawyers.
Informed Consent
Informed consent is the consent given by a patient with a full understanding of the procedure. The operating doctor is responsible for ensuring patients are adequately informed about the procedure before they append their sign.
The doctor may have to go through the procedure several times with the patient, explaining what they will do to the patient’s body, their experiences during and after the procedure, and potential complications or side effects, even when the likelihood of such complications may be remote.
State laws differ regarding the kind of information that doctors are supposed to share with their patients. If you are new in the healthcare industry or are expanding to a new location, it is important to understand state requirements to ensure you are compliant.
Challenging a Consent Form
It is not uncommon for a patient to sign a consent form without sufficient information about the procedure only to discover complications later.
It is difficult to prove that your consent was not adequately informed when you signed off on a procedure, but it is not out of the question.
Some strategies that your lawyer can employ to challenge a signed consent form include:
Witness Testimonies
If you had other persons present when signing the consent form, your lawyer could rely on their testimony to prove insufficient information. Witnesses to such a case can be a relative, a health care provider, or hospital support staff.
Patient Account
The patient’s account is also critical in determining whether or not they were adequately informed about the procedure. However, their account may not have much weight because they may have vested interests in the case and thus could be biased.
Other strategies include working with expert witnesses, examining medical records, and reviewing the consent forms for errors and ambiguities.
Situations Where Informed Consent Is Exempt
There are situations where informed consent may not be required, such as when a patient is incapacitated or unable to understand the information concerning their treatment. A patient can be said to be incapacitated if they are in a coma, intoxicated, or suffering from a severe degenerative brain disorder such as dementia.
Still, someone else–also known as a surrogate decision maker–will have to give consent on their behalf. If the incapacitated person had appointed a surrogate decision maker before their incapacitation, they would be responsible for making health care decisions on their behalf. If not, a close relative such as a spouse, child or sibling will step in as one. If a close relative is not an option, the court can appoint a guardian to decide on their behalf.
The second situation where informed consent is exempt is during a life-threatening emergency. Under such circumstances, the doctor can do what they deem fit to save a life with or without consent. Informed consent may also be exempt when the patient waives it voluntarily. For example, if a patient is in deep pain and wants a procedure performed without delay, they may decide to waive their right to informed consent.
Conclusion
Understanding informed consent is essential for both patients and healthcare providers. While it protects patient rights, there are exceptions in emergencies or cases of incapacity. If disputes arise over consent validity, legal guidance can help navigate challenges and determine if a patient’s rights were upheld.
