Can I Pursue A Medical Malpractice Case If I Signed A Consent Form Before I Had My Procedure That Caused The Injury?
- October 5, 2017
Today, nearly every medical procedure, surgery, and treatment requires the patient to sign a consent form. Most, if not all, of those forms claim to release the medical personnel and facility from legal liability in the event that something goes wrong, but do these kinds of forms really protect doctors from medical malpractice suits? A closer look at how release forms affect liability may reveal some surprising answers.
What are Consent Forms and Informed Consent?
A consent form is a pre-prepared form that includes blanks for the physician and patient to fill in specific details, such as names and addresses. The primary purpose of the form is to establish the patient’s permission, prior to undergoing a particular procedure. As such, the form details the procedure to be performed and the possible complications that may arise from or during the procedure. Most consent forms advise the patient that they could lose their life during the procedure and this disclaimer is included on consent forms for even the most routine and simple operations.
A patient who has signed a consent form is said to have given the physician his/her informed consent. Informed consent means that the patient has been advised of the chances of a successful procedure, as well as any adverse side effects the operation or treatment may produce. Before signing the form, it’s up to the patient to clarify any points on which he or she has questions or concerns.
For instance, a patient facing open heart surgery would be advised of the complications that might arise, as a result of the operation. These adverse effects would include bleeding, abnormal heart rhythm, blood clots, stroke, and death. While the risk of these complications may be unlikely, the physician is still required to notify the patient of the potential. any complication considered “statistically significant” must be included on the consent form.
How Do Consent Forms Affect Medical Malpractice Lawsuits?
Consent forms can both protect the patient and the physician, depending on the situation. Normally, a well-crafted consent form will protect the doctor from medical malpractice claims, but errors in the form’s substance can open up the physician to a medical malpractice lawsuit. There are generally two ways this can happen: either the form did not list a complication and the patient suffered that complication, or the consent release didn’t thoroughly define the complication.
Failing to identify a complication is something that can and does happen, resulting in medical malpractice suits. Any known risk involved with a given procedure should be listed on the consent form, though not every risk needs to be detailed on the form. For instance, a risk that has rarely occurred and isn’t common in medical literature isn’t something that one would need included on a standard surgical release. If the risk is rare, but has been extensively discussed in medical research, it may be wise for the physician to include it on the release form.
Additionally, each complication must be defined or described with some detail, particularly in relation to the possibility that it may occur. For instance, a consent form may list heart failure as a possible complication of the procedure and identify a 15% chance of that risk. If the consent either doesn’t include the rate of risk, or misquotes the rate, that can open up a doctor to medical malpractice.
Often, patients make their decisions based on the percentages of success versus the percentages of complications arising. If that same consent form lists heart failure with a 4% chance of occurring, the patient may agree to the procedure. It was the low chance of risk that prompted the patient to go through with the operation.
Conversely, a properly documented consent form can protect a doctor against medical malpractice suits. As long as the form documents the procedure, including the reasonably known risks and accurate assessments of those risks occurring, it’s believed that the consent form is without fault. Provided the patient can’t say he or she was pressured to sign the form and it can be shown that the patient was mentally competent at the time the consent was signed, claims of medical malpractice usually cannot be alleged. Except in the event that a patient was experiencing dementia, intoxication, or the effects of medication, courts assume the consent form was read and understood at the time it was signed.