As a nationally recognized law firm with three decades of experience, Weitz & Luxenberg has years of experience holding irresponsible or unethical medical practitioners accountable and has won compensation for our medical malpractice clients.
In one year alone, the Weitz & Luxenberg team recovered $7 million on behalf of families whose loved ones suffered from medical malpractice and wrongful deaths.
Even if a medical error did not occur, you may still be seriously injured during treatment. Your doctor is required to make sure you are aware of the risks before you get the treatment. If you do not give your informed consent — and understand what risks you are agreeing to — you may deserve to be compensated.
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As an independent, not-for-profit organization, The Joint Commission accredits and certifies nearly 21,000 health care organizations and programs in the United States. The Joint Commission claims that 44% of patients who sign consent forms “do not know the exact nature of the operation to be performed, and most — 60 to 70 percent — did not read or did not understand the information contained in the form.”(1)
At Weitz & Luxenberg we advocate for clients who may not be able to fight for themselves. Our knowledgeable, experienced, and compassionate team members work to protect those who need our strong legal backing.
Informed Consent Lawsuits
Informed consent lawsuits are a special type of personal injury and medical malpractice legal case. Informed consent cases are complex, which makes them difficult to prove.
Most victims do not have the knowledge and training to fight their legal battle alone. They need a strong legal advocate to fight on their behalf.
If you or a loved one is considering an informed consent lawsuit, let the lawyers at Weitz & Luxenberg put their knowledge and experience to work for you to help you get the compensation you deserve.
What Is Informed Consent?
Informed consent is much more than just signing a consent form at the doctor’s office or hospital before having a medical procedure or surgery. While these consent forms are required for doctors and hospitals to proceed with medical treatments, they are not the same thing as exercising your right to know. You need to understand what a medical treatment or procedure means for you.
Key to making a reasonable decision regarding your medical care is understanding the possible outcomes and consequences associated with the treatment. You have a right to be informed of the risks involved.
While the definition of informed consent may vary depending upon state law, the core of such legislation is the same. The intent is to ensure patients make knowledgeable decisions about their medical treatments or procedures after a health care provider discloses all the information regarding the risks.
According to The Joint Commission, “Informed consent in medical care is a process of communication between a clinician and a patient that results in the patient’s authorization or agreement to undergo a specific medical intervention.”(2)
A lack of informed consent means a failure by the health care provider to disclose to the patient reasonably foreseeable risks, alternative treatments that may be available, and the benefits of any proposed treatments. This information must be communicated in a manner such that a patient may make an informed evaluation.
Informed consent law usually allows for two types of consent — express and implied.
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Express consent may be given in writing or verbally. An informed consent form should provide patients with all the information they need to make a knowledgeable decision about the treatment or procedure they are considering. That information includes:
- Name of doctor who will perform the procedure
- Summary of your medical condition
- Purpose of procedure
- Risks involved
- Alternatives to procedure
- Usual recovery time
- Estimated costs
There are times when written or verbal consent is not expressly given, but may be implied by circumstances.
At times, written or verbal consent is not given but is understood based on the circumstances surrounding the treatment being done. This type of consent applies when a patient has a relatively minor, noninvasive type of procedure.
Implied consent also applies to any additional procedures a surgeon might need to perform in the course of a surgery to which a patient has already given consent.
Exceptions to Informed Consent
There are some circumstances in which a doctor is not required to get express informed consent. One example would be in the case of an emergency where a doctor must take immediate medical action to save a person’s life.
There are also patients who are legally unable to give consent due to, for example, mental illness or because the patient is a minor.
When Lack of Informed Consent May Be an Issue
Disturbingly, Temple Health reports “…in a survey of 50 patients, after surgery, the purpose of consent forms is often unclear, and patients frequently perceive them as a form of legal protection for hospitals and treatment centers rather than as a source of information.”(3)
To make matters worse, there are times when basic information is missing from a consent form. The Joint Commission says, “One research study found that four basic elements of informed consent… were included on the consent forms only 26.4 percent of the time.”(4) Those elements were:
- Nature of procedure
It is not just neglecting to obtain written consent where there may be failure. Informed consent is about communication between the doctor and the patient.
“There are many potential reasons for this failure of truly informed consent and the ongoing lack of understanding,” says Temple Health.(5) Patient factors that affect understanding may include:
- Low health literacy
- Limited English proficiency
- Cognitive impairments
- Learning disabilities
- Hearing or vision impairments
- Confusion about the purpose of the consent process
- Feelings of intimidation and stress or time pressure(6)
Temple Health goes on to explain, “In addition to the acknowledged low rates of health literacy and English proficiency seen in an increasingly diverse American society…the other less well documented human factors that may negatively influence the patient’s comprehension of medical information include memory, education level, and also the timing of the informed consent session.”(7)
Temple Health reviewed studies in which some startling statistics were revealed. For example, one 2006 study using a modified consent process “with 204 ethnically diverse elderly patients (40% with low literacy) found that only 28% answered all comprehension questions correctly… . Low literacy and being black were associated with need for more education.”(8)
Likewise, situations where informed consent may become an issue can arise when a doctor fails to take into account their patient’s culture. As surprising as it may seem, doctors are not necessarily trained to be culturally sensitive. They may display insensitivity to cultural issues of their patients when developing consent forms or even while interacting with patients.
In any case, informed consent is not obtained unless the patient understands the course of treatment they are being asked to agree to. Informed consent greatly depends on communication between doctors and patients.
A consent form is not the defining factor in truly informed consent, understanding is.
Informed Consent and Conflict of Interest
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Informed consent is at the heart of your rights as a member of a free society. You have the right to decide what happens to your body, provided you do no harm to someone else. However, when you are facing a medical decision and feel scared, you may surrender your right to choose to a doctor.
This is problematic for two reasons. First, the doctor’s values may not agree with your own. Secondly, the doctor could have a conflict of interest, which means the doctor is not able to be objective. Any advice the doctor might give could be prejudiced by personal interests.
Conflicts of interest can occur in three ways:
- When doctors have an opportunity to use their position for financial gain or to benefit a company in which they have a financial interest.
- When outside interests improperly influence the way in which doctors perform duties or responsibilities.
- When doctors’ outside interests might cause harm to their practice, staff, or patients.
In addition to conflicts of interest, there can be a conflict of commitment. This occurs when an outside relationship deters doctors from devoting an appropriate amount of time and energy to their practices.
The need to protect a patient’s rights and safety seems clear. Therefore, both the law and medical ethics require doctors to provide their patients with the important facts. This is necessary so the patients can make an intelligent decision about what treatment to have, where to have it, and even who should provide it.
Key Concerns in Medical Decisions
When considering your options regarding medical decisions, you should seek answers to these questions:
- What is the best possible outcome?
- What is the worst-case scenario?
- What are the risks involved?
- Do I really need this?
- Is treatment worth the pain, effort, and risk?
- Are there other options available?
- What are the alternative treatments?
- How will it affect my health in the future?
- How often has my doctor performed this procedure, surgery, or treatment?
- Is there someone else who has more skill?
- Who would my doctor ask to do this procedure on themselves or a family member?
- What is the success rate for similar cases at the hospital or treatment facility where the surgery or procedure is to take place?
These types of questions can help you to make your best decision.
If you are in need of a legal advocate, it is important that you consult with a qualified informed consent attorney as soon as possible.
Informed Consent Attorneys Navigate Legal Standards
There are two legal standards courts have applied to what a patient needs to know in informed consent cases. The first standard is patient-centered, while the second standard is doctor-centered. Which standard is used depends upon individual state law.
The patient-centered standard considers what a reasonable patient would want to know about a proposed treatment.
The doctor-centered standard considers what doctors customarily tell patients about a proposed treatment.
Under the patient-centered standard, the jurors become the “experts,” since they are typical patients, too. In the doctor-centered standard, lawyers are required to rely on the testimony of medical experts as to the information that doctors typically disclose.
Understandably, doctors’ opinions about what information patients require to make medical decisions are different than what patients think they need.
While most states have adopted the patient-centered standard, not all have. Knowledge of state law is critical to the success of an informed consent lawsuit.
Weitz & Luxenberg informed consent attorneys know precisely how to navigate these legalities in order to help our clients secure any compensation they deserve.
Weitz & Luxenberg Attorneys Can Help
As head of Weitz & Luxenberg’s medical malpractice team since 1990, Allan Zelikovic has worked on more than 1,000 lawsuits dealing with issues of substandard medical care and dangerous drugs or devices. His many successes on behalf of our clients testify to the extensiveness of his experience and skill.
Mr. Zelikovic has helped to secure millions on behalf of our clients, “We’re proud of the results we achieve for our clients and their families.”
The Weitz & Luxenberg team of dedicated legal professionals handles cases where people have been hurt or killed as a result of medical malpractice or personal injury. We would feel privileged to help you. For a free consultation, please call us at (800) 476-6070.