Our country is founded on the importance of allowing individuals to make decisions for themselves. When it comes to your health, this principle should be no different.
However, the issue becomes more thorny in certain health cases. Victims of traumatic brain injuries, for example, are sometimes rendered incapable of response for weeks or months. In many cases, the elderly suffer a precipitous slide into dementia, which leaves a formerly capable person helpless to understand important issues about his or her health.
The fact is that, while we all recognize the importance of having a contingency plan for our health care, most injuries come in unexpected forms at unexpected times.
At the Perey Law Group, we have decades of experience representing victims in a variety of medical cases. One type of case we encounter is the malpractice case resulting from a lack of informed consent.
Although the specific definition of informed consent may vary from state to state, informed consent essentially means that the patient has made a knowing, intentional decision about a medical treatment or procedure after being provided all the information a reasonably prudent medical practitioner would give to a patient regarding potential risks. In many situations where medical care or treatment is provided to an individual, medical professionals are required to obtain the patient’s “informed consent.”
The tricky part, of course, is distinguishing between “express” or “implied” consent. Express consent is given in writing or verbally. Consent not given by a patient in writing or verbally, but understood from the circumstances surrounding the procedure or treatment at issue, is known as “implied” consent.
In addition, there is the matter of surrogate consent, where a patient is deemed incompetent of making the decision for themselves. While the state of Washington and federal authorities recognize an incompetent individual’s right to autonomy and self-determination, some situations call for a surrogate decision-maker to use the doctrine of “substituted judgment,” as it’s known in the Washington State Hospital Association, to accept or refuse healthcare on behalf of an incompetent individual.
When a Doctor Can Override Consent
In certain situations, doctors may choose to override consent. Those situations include:
Sometimes, there is no time to obtain a patient’s informed consent. The patient may be unconscious or unable to communicate. If the patient’s life is at risk or the patient is unable to communicate, a doctor may decide to go ahead with a procedure without express content.
If the patient might suffer significant emotional or physical harm from being fully informed about the procedure, the doctor may be within his rights to go ahead without informed consent.
Consent from the patient is not required in situations where a patient must submit to a test or treatment; for example, in situations of mental health problems or communicable disease.
However, these special cases are the exception, not the rule. The fact remains that patients are entitled to complete information about treatments or procedures they will undergo. And in many cases we have handled, patients have found their long-term health compromised by a doctor’s negligence in fully informing them about a procedure or treatment, or failure to diagnose a condition accurately.
Bottom line: failure to provide information can subject the health care providers to legal liability.
We Have a Doctor on Staff
At Perey Law, we retain medical professionals on our staff, in addition to our team of lawyers. Our mission is to help our clients get their cases quickly moving toward resolution, with the goal of getting them the resources they need for a real solution to their needs. We have been handing medical malpractice cases for more than 40 years.
You can learn more about understanding informed consent at our web page. Call us at 206-443-7600 for help with your case, or fill out the form on the right-hand side of this page.