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An Overview of Informed Consent

By Dansker & Aspromonte

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July 20, 2024

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If you have suffered from medical malpractice due to errors in the emergency room, diagnosis or surgery, you should contact an experienced attorney to evaluate and represent your case.

Whenever a medical professional is considering using any type of medical treatment or procedure on a patient, he or she must first get an informed consent from the patient. The definition of this term can vary from state to state, but overall it means that the patient has to knowingly decide on whether or not they want to proceed with a medical procedure or treatment. It is required by law for physicians and other health care professionals to break down the benefits, risks and available alternatives for the procedure or treatment before having the patient sign an informed consent. When a health care provider fails to do this, he or she can be held liable for legal claims for damages that are being pursued by an injured patient. To see if you have a valid medical malpractice case, you can consult with a medical malpractice lawyer at Dansker & Aspromonte LLP Associates in New York City.

Informed consent is based on the concept that patients have the right to know and a right to stop unauthorized contact with his or her body. This is also based on the idea that it is mandatory for physicians to disclose details to patients about a treatment, so that they can make an informed decision based on that understanding. In the case of medical trials and experiments, an informed consent is required from the patient beforehand.

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Medical Malpractice – An Overview
Understanding Informed Consent
Responsible Parties in Medical Malpractice Actions
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The attorneys at Dansker & Aspromonte LLP have successfully handled numerous medical malpractice cases for clients throughout the New York City metropolitan area. No matter how difficult and complex the case, we are prepared to handle it.

What is a Valid Informed Consent?
To ensure that patient consent is valid, it’s required that the following criteria be met:

The consent should be obtained from the medical professional who will be performing the treatment or procedure and should have complete knowledge of the patient’s medical history
The physician should ensure that the patient has the mental and legal capability to give consent
Physicians should not try to persuade patients to sign a consent form
When a patient consents to a particular procedure, the medical provider can’t go beyond the scope of the procedure that was consented
The medical provider should provide enough information about the risks, benefits, unusual but serious risks (like death), alternative methods and its risks and benefits, and consequences of treatment refusal
The patient should be given time to ask questions about the procedure and information given
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The Two Types of Consent
There are two forms of informed consent that can be given to a medical professional by a patient, implied and expressed. An expressed informed consent is when the patient either gives consent orally or in written format. When written, it’s important that the consent also includes the health professional’s name that discussed the treatment with the patient and the health provider who will be performing the procedure, plus the date, location and time it will be performed.

An implied consent is when the patient doesn’t give oral or written consent, but is understood to be consented based on the situation surrounding the treatment. An example of this is when a patient comes to the hospital or clinic regarding a non-invasive procedure. Another example is when a necessary treatment or procedure, such as a surgery, is needed in the course of another surgery that the patient already consented.

Are there Exceptions to the Rules of Obtaining a Valid Consent?
Emergency situations such as within the ER, there’s usually not enough time to obtain an informed consent from the patient, due to the patient being unconscious or unable to communicate. In the event that a medical emergency poses a threat to the life of the patient and he or she is unable to communicate, implied consent is granted under the circumstances that it is a life-threatening situation.

Another exception is when emotional or physical harm is a risk factor of a patient. Some patients aren’t required to give consent when the nature of certain information may be too troubling for them.

Consent isn’t required for compulsory tests. When a patient has mental disorders or a communicable disease and needs certain tests or treatment, consent isn’t needed.

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How Consent is Obtained from Minors and Incompetent Persons
Obtaining consent isn’t always a simple process, especially when the patient is an incompetent adult or a minor. When individuals are impaired, mentally disabled or a child, and treatment is needed, it can be hard to get the consent that’s needed. Finding someone who can give informed consent on behalf of the patient may not be easy as well.

A guardian is typically appointed to a person who is mentally disabled. The guardian is able to make medical decisions and provide informed consent on behalf of the individual. It’s important that the physicians ensure that they are receiving informed consent from the right person or people.

In the case of minors, parents are usually the guardian who provides informed consent. There are some states that enable minors to have more say in the medical care and treatment they receive. This includes partaking in the process for obtaining an informed consent. The states that offer this option gear it towards mature minors, so not all teens fall under this category. In some situations, mature minors are able to give informed consent without a parent. Some of the treatments that mature minors are able to get without parental consent include those for mental illness, substance abuse and sexual activity.

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It is every patient’s right to receive sufficient information about procedures and treatment before consenting to them. When this isn’t adequately provided and you are damaged or injured from the treatment, you could be eligible for compensation. To find out if you have grounds for a medical malpractice case, give the experienced malpractice lawyers at Dansker & Aspromonte LLP Associates in NYC a call today.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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