New York Failure to Obtain Informed Consent Attorneys

Medical treatment often carries a degree of risk, so doctors and other healthcare providers must obtain informed consent for treatment from their patients. To consent to treatment, you must understand the risks and benefits and then decide to accept or decline the indicated procedure.

If a doctor fails to obtain a patient’s informed consent, they may be liable for medical malpractice. This could be considered medical negligence. If you have adverse effects from the procedure, you may be able to file a claim against the doctor or healthcare facility. However, proving a lack of informed consent in New York can be complicated. A skilled New York medical malpractice lawyer from Harris Keenan & Goldfarb can evaluate your case. Call today at 800-724-6529.

What Is Informed Consent?

The National Library of Medicine defines informed consent as a process where a healthcare provider educates their patients about the potential benefits and risks of a given procedure and alternative treatment, if available. To give informed consent, the patient must be of sound mind and legally able to make decisions about their health care. Informed consent is part of voluntary medical treatment. It’s governed by professional standards the American Medical Association (AMA) sets.

Informed consent is an ethical obligation of all licensed physicians. It’s also legally required in a broad variety of medical treatment situations. The required elements of informed consent include the following:

• The healthcare provider verifies that the patient can make decisions about their healthcare.
• The healthcare provider must provide sufficient information so the decision-maker can make an informed choice.
• The healthcare provider must determine that the decision-maker understands the information.
• The decision-maker must authorize the treatment plan freely.

How is Lack of Informed Consent Considered Medical Malpractice?

Most people associate medical malpractice with a surgical mistake or a mistaken diagnosis. But, failure to obtain informed consent can also be a form of malpractice.

For example, performing surgery without making a patient aware of the risks is a form of malpractice. Simple consent isn’t the same as informed consent. Surgery under general anesthesia is always risky, even with the healthiest patient. But, evaluating the risks of general anesthesia against the benefits of having the surgery is part of a patient making an informed decision to consent. And the patient should also understand what the outcome would likely be if they did not have the surgery.

If a doctor fails to disclose the significant (or even minor) risks of a procedure or treatment plan before obtaining the patient’s consent, they may be liable for any harmful outcome. This is true even if the procedure or treatment is successful. The physician may still be open to a malpractice accusation without informed consent.

You may have legal options if you underwent a medical procedure or treatment you wouldn’t have if you knew all the facts, risks, and potential benefits. Doctors and medical facilities that fail to fully disclose the risks of a procedure or course of treatment should be held accountable for this lack of care for patients. Our law firm can help.

New York Limits on Medical Malpractice Claims Due to Lack of Informed Consent

New York Public Health Law 2805-d governs malpractice actions based on lack of informed consent. It limits the scope of actions that can be considered a lack of informed consent. A claim may only be valid if the procedure is a non-emergency treatment or surgery. Or diagnostic procedures involving disruption or invasion of the patient’s bodily integrity.

A non-invasive test or emergency medical care cannot be a basis for a medical malpractice claim based on a lack of informed consent.

Doctors and hospitals know this. Therefore, they have multiple defenses to avoid litigation or a lawsuit filed by a patient who believes they did not give informed consent. Some common excuses a healthcare provider or medical facility may offer for failing to obtain a patient’s informed consent include:

• It was not reasonably possible for the healthcare provider to get consent from the patient or the patient’s representative.
• An undisclosed risk for the treatment is so commonly known that it wouldn’t need to be specifically disclosed,
• The patient told the doctor they didn’t want to be informed about the procedure.
• The patient told the doctor they wanted the procedure regardless of the risk.

After considering the totality of the situation, the doctor used reasonable professional discretion not to disclose alternative treatment or any risks because they had a reasonable belief that disclosing such risks or an alternative would substantially worsen the patient’s condition.

Determining Whether You Provided Informed Consent

Healthcare providers have plenty of layers of protection to contest any patient claims of malpractice based on lack of consent. It’s your New York medical malpractice lawyer’s job to counteract this.

In your initial consultation with a Harris Keenan & Goldfarb medical malpractice lawyer, you may be asked the following questions:

• Did you sign consent forms for your procedure?
• Were the forms you signed clear and complete?
• Did the consent forms properly explain the risks and potential benefits of the treatment?
• Were you provided with alternatives to the physician’s recommended treatment?
• Was there any undisclosed risk? If so, what was the nature of the risk?
• Could the medical care provider have reasonably obtained consent from you or your designated representative but did not?

Finally, your attorney may look for evidence, including expert witness assessments, of whether a reasonable person would have declined the surgery or procedure if they had been made aware of specific undisclosed facts about the surgery.

How Can a New York Medical Malpractice Lawyer Help Me?

If you believe you were a victim of medical malpractice due to lack of informed consent, you have the legal option to pursue compensatory damages to recoup your losses, like:

• Past, present, and future medical care, including medication
• Lost wages from time missed at work
• Loss of earning potential
• Pain and suffering
• Diminished quality of life

Do You Need a NY Medical Malpractice Lawyer?

If you did not give informed consent to a medical procedure or course of treatment, you may have grounds for a medical malpractice lawsuit. Contact Harris Keenan & Goldfarb today at 800-724-6529 for a case review with a skilled New York medical malpractice attorney.