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      What is Informed Consent in Medical Negligence?

      Quick answer

      All doctors, hospitals and other medical professionals need to get your informed consent before doing any medical procedure. This means they need to fully explain the risks of the procedure, as well as any alternatives you could explore.

      If your medical treatment failed to get your informed consent, you could have a medical negligence claim. It’s also referred to as a ‘medical malpractice’ claim. Read on to learn whether you qualify for an informed consent claim.

      In depth answer

      What is informed consent in medical negligence?

      In medical negligence, informed consent can be broken down into two basic types: 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.

      Do I have an informed consent medical malpractice claim?

      To figure out if you have an informed consent medical malpractice claim, 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:

      • Failed to obtain informed consent prior to performing a procedure on you, or
      • Failed to explain or warn you of the risks associated with the particular procedure and, if informed of those risks, you would not have proceeded.

      In both cases, it’s not enough just to show a lack of informed consent. You’ll also need to prove that:

      • A complication arose because of the procedure and this was not explained to you prior, and
      • The complication caused injury to you.

      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.

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