Medical malpractice occurs when a doctor or medical professional fails to competently perform a medical treatment and the patient is harmed as a result. One type of medical malpractice is lack of informed consent by the patient – doctors are required by law to inform their patients about the known risks involved for a proposed medical procedure or a course of treatment. When fulfilling this requirement is in question, litigation can become essential to analyze what happened.
While informed consent is not required in some situations, such as in an emergency, under most circumstances, doctors must give their patients detailed information about the particular procedure to be performed and explain the risks. Typically doctors ask the patients to sign an informed consent form to satisfy this requirement. After a patient gives his or her informed consent, the doctor cannot do what the patient has not consented to by doing a different surgery or performing additional medical treatment.
To better illustrate these points, a recent medical malpractice case examines the doctrine of informed consent: Ms. Boudreaux underwent a shoulder replacement surgery performed by Dr. Parnell to cure rheumatoid arthritis that severely affected her right shoulder joint. Following the surgery, however, Ms. Boudreaux developed radical nerve palsy that ultimately became permanent and disabling.
It was not disputed that Ms. Broudreaux’s humerus was fractured during the surgery and a large amount of surgical cement leaked through the fracture. One of the allegations by Ms. Boudreaux was that Dr. Parnell failed to provide her with sufficient information before the surgery to enable her to give an informed consent. Specifically, she alleged that Dr. Parnell failed to inform her the known risk of cement for this type of surgery.
According to the Louisiana Uniform Consent Law, the fact that there is injury is not by itself sufficient to establish a lack of informed consent. Also, a doctor does not need to tell the patient every possible thing that might happen, but only need to inform those risks that are important. A risk is important if it is material, meaning that a reasonable patient would have made a different decision if the risk was disclosed. Ms. Broudreaux’s claim of informed consent was dismissed because she failed to prove that her consent “was induced by a misrepresentation of any material facts”. In other words, the risk of cement intrusion was not an important risk so Dr. Parnell did not have to tell her about it.
Informed consent is often a hotly contested issue in court because doctors do not have to inform all the risks involved in a medical procedure. The patient has to provide sufficient evidence to show that a doctor failed to disclose a material risk that would have led a reasonable patient in the same situation to change her mind. It is therefore very important to get legal representation when informed consent is at issue.