Know Everything You’re Signing Up For: Understanding Medical Informed Consent
Medical malpractice covers a broad range of actions that have one common denominator, and that is a doctor inappropriately or negligently practicing their trade. Although it may not attract major headlines like botched surgeries and medication overdoses, failure to obtain informed consent is a serious (and common) example of medical malpractice.
The Texas informed consent law requires a physician to disclose to the patient all hazards and risks that are associated with a proposed form of medical care and that would influence the decision of a reasonable person to give or withhold consent. These procedures are no longer limited to diagnostic, invasive, or surgical treatments: written consent should also be obtained for drug therapies that could involve significant side effects or complications. Texas even has a separate consent form addressing anesthesia.
Duty to Obtain Informed Consent
In Texas, treating physicians are legally obligated to obtain informed written consent for treatments or procedures indicated in List A of the Texas Medical Disclosure Panel. Referring physicians, surgical assistants, nurses, and hospitals do not as a rule have an obligation to secure consent, although state courts have allowed for two situations where a hospital or nurse might face liability in an informed consent situation:
- The hospital or nurse agrees to undertake the treating physician’s duty. This does not absolve the doctor of liability for failure to obtain consent; it simply imposes a liability on parties who would otherwise not face it.
- The nurse fails to report a disparity between the procedure and the patient’s understanding of it.
Informed Consent Document
Any time a patient is about to undergo treatment such as surgery, the treating physician provides them with an informed consent document. It is ostensibly intended to inform the patient of any potential risks and give them the opportunity to ask questions about the procedure, but its primary purpose is to protect the doctor from medical malpractice claims.
Fortunately, signing the document does not necessarily mean that the patient has relinquished all rights to sue if something goes wrong. In the event that the patient makes a claim, three standards are applied to their case.
- Reasonable Physician Standard: How much information would a typical doctor provide to patients before asking if they consented to a procedure? This standard helps determine whether or not the amount of disclosure in the document was appropriate.
- Subjective Patient Standard: This standard determines what the patient who was treated would need to know and understand in order to provide informed consent.
- Reasonable Person Standard: Would the average patient have accepted the treatment if they had been fully informed of the potential risks?
If the conclusion is that the informed consent document did not provide the necessary disclosures for that particular patient to make a knowledgeable decision regarding treatment, a medical malpractice claim may proceed.
When Informed Consent Is Not Required
Texas has some exceptions to the informed consent rule. The Texas Medical Disclosure Panel’s List B features procedures that require no disclosure of any risks or hazards. Another noted exception is emergency treatment. If, for example, a person has been struck by a motor vehicle and is barely conscious, emergency room staff must move quickly to save the patient’s life. This person cannot generally sue for lack of informed consent in a situation like this one, even if they would normally have refused treatment.
If you consented to a medical procedure or treatment without being fully informed of all potential risks involved and were injured as a result, contact the Sharp Firm today. We will help you determine whether or not you received all the necessary information before a medical procedure was performed and, if you were not, fight to get you the compensation you are entitled to.
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