Your medical professional has a ‘duty of care’ toward you, meaning they are legally obligated to act with concern for your safety and welfare. This duty extends to obtaining proper consent before any medical procedure or treatment. If your medical professional treated you without proper consent, you may have a medical negligence claim.
What is consent?
In a medical context, there are two different types of informed consent: implied consent and express consent.
Express consent is usually provided in written form, such as signing a consent form before a medical procedure.
In contrast, implied consent is typically conveyed through your actions or conduct, such as rolling up your sleeves for a blood test. Implied consent can also include situations where you’ve signed a general consent, allowing the medical professional to proceed with any necessary medical treatments.
Prior to some procedures, a surgeon will provide their patient with a pamphlet, which can be considered a form of informed consent.
There are also instances in which consent cannot be obtained, such as when a patient is unconscious or the situation is an emergency. In these cases, it is unlikely the medical professional will be found to have breached their duty of care.
Does my situation qualify as medical negligence?
It’s important to look at what was explained to you prior to the procedure. You may have a claim for medical negligence if a medical professional either:
In both cases, you must then show that:
When determining whether a medical professional failed in their duty of care, an additional consideration is whether another medical professional in the same specialty would have acted in the same manner. If your medical professional acted as any of their colleagues would have, it’s unlikely that their actions will be considered negligent.
Though consent-based claims for medical negligence are incredibly complex, a skilled medical negligence lawyer can help you navigate your claim. If you’re looking to start a medical negligence claim, or unsure whether or not you have a claim, give us a call today. Our medical negligence lawyers will take you through your legal options in a free, obligation-free consultation.