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How Can Informed Consent Impact Your Medical Malpractice Lawsuit?

Published on November 9, 2023

As patients, we put a lot of trust in our medical providers, believing that our health is their highest priority. When it comes to making critical decisions about our health, we want to be the ones who ultimately make the decisions; but before we make choices about our healthcare, we have to trust that our doctors fully inform us about what those choices are and the negative and positives impacts associated with all of our options.

In the healthcare system in the U.S., we have the right to expect our healthcare providers to treat our medical conditions and injuries at the standard of care accepted by the medical community as the best practice. An important part of this accepted level of care requires a doctor or other medical provider to obtain informed consent from a patient before performing a procedure or administering a medication. If a provider fails to obtain informed consent, the negligent action has a significant impact on a medical malpractice lawsuit in Arizona.

What is Informed Consent?

Like all states, Arizona requires medical providers to gain informed consent from their patients before treating them. This consent must come after the doctor makes a treatment recommendation and explains their reasons for recommending the treatment, medication, or procedure. Informed consent is comprised of two parts:

Advising a Patient

Doctors have the duty to advise a patient about a proposed treatment, procedure, or medication by telling them the following:

  • The benefits of the treatment
  • Possible side effects
  • Associated risks
  • Possible complications 
  • Alternatives to the proposed procedure
  • The risks and benefits of the alternatives

Obtaining Documented Authorization 

After fully informing the patient, the provider must do the following:

  • Obtain a signed authorization for the procedure or medication from the patient or their representative before beginning the treatment
  • Assess the patient’s understanding of the above
  • Make it clear to the patient that they must participate in the medical decision-making process and haven’t been forced or coerced into accepting the treatment

The purpose of the informed consent process is to ensure that every patient learns the full potential benefits, risks, and alternatives of a proposed procedure—and understands them—before undergoing the procedure. The patient must also have time to ask questions about the treatment and receive honest answers or seek a second opinion before making a decision.

When properly obtained, informed consent protects both the patient and the provider.

Informed Consent and Liability in Medical Malpractice Cases

Obtaining informed consent is part of the medical community’s accepted standard of care. Any reasonable physician would obtain fully informed consent before performing a procedure or administering medication to a patient. If a doctor or other provider fails to obtain informed consent it’s an act of negligence. If the patient suffers an injury from the procedure and suffers damages, proving that they did not give informed consent becomes the key to gaining compensation for damages like medical expenses, lost wages, and pain and suffering. 

The burden of proving liability rests on the injury victim (plaintiff) in the case. Proving liability in a medical malpractice case requires demonstrating the following:

  • A doctor/patient relationship existed at the time of the treatment
  • The provider had a duty to treat the patient at the standard of care accepted by the medical community—which includes obtaining informed consent
  • They breached this duty of care
  • The breach of duty resulted in injury to the patient
  • The patient suffered significant economic and non-economic damages from the injury.

When medical malpractice lawsuits come before a jury, the jury members are typically instructed to ask themselves the question, “Would another reasonable doctor have treated the patient the same way in the same circumstances?” If the answer is no, then malpractice occurred.

What if a Doctor Acts Outside of the Informed Consent?

When a doctor obtains informed consent for a procedure or treatment, they cannot act outside of that consent. For example, a patient who gave informed consent for an appendectomy should never wake up from surgery to discover that the doctor also removed their gall bladder because it appeared diseased. The doctor is limited to only the treatment for which they gained consent. In order to perform another procedure or a different treatment, they’ll need to obtain a new or second informed consent.

Are There Ever Exceptions to the Rule of Informed Consent?

Two exceptions exist to the law of informed consent in Arizona medical care:

  • When a patient is a minor, their parent or guardian must give informed consent before treatment
  • In an emergency situation when a patient is unable to give informed consent, providers are able to perform life-saving procedures with the assumption that the patient would give consent for the critical treatment if they were not incapacitated.

Common Damages in Medical Malpractice Claims

Injuries in medical malpractice cases range from mild to severe or catastrophic. If the patient did not give informed consent before receiving the treatment that caused injury, they may gain compensation for any or all of the following damages:

  • Past and future medical expenses
  • Lost wages and future income loss
  • Diminished future earning capacity due to disability
  • Pain and suffering
  • Any other non-economic damages that might apply in a case such as compensation for disfigurement, emotional trauma, or loss of enjoyment of life

When a doctor performs a procedure or begins treatment and does not first obtain informed consent, they are liable for the above damages. Payment in a medical malpractice claim comes from the provider’s malpractice insurance policy. 

In some medical malpractice cases, the hospital or medical facility may be the liable party. For instance, if the provider was an employee, if they have inadequate hiring or training processes, or if an administrative or communication error resulted in the lack of informed consent and/or the injury.

If you suffered injuries from a medical treatment, surgery, procedure, or medication, and your provider did not obtain your fully informed medical consent before performing the procedure or beginning the treatment, it’s important to speak to a Phoenix medical malpractice attorney about filing a malpractice claim within Arizona’s two-year statute of limitations for medical malpractice lawsuits.

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