What’s The Point of Requiring Informed Consent?
Anyone who’s had a procedure done in a hospital has heard of the term “informed consent.” You know, it’s that form they make you sign, and it tells you all of the risks of the treatment you’re going to have. They tell you this because you have the right know all of the information that’s important to a patient who has to decide whether to go ahead with the treatment. But what happens if you decide to have the procedure, and you end up with serious complications? You hire an attorney to find out what your rights are, and you learn that the complications you’re suffering from should have been disclosed to you, but weren’t. Is that enough to file a lawsuit for medical malpractice?
Let’s take a look at an actual lawsuit that was filed by the family of a woman who died as a result of a procedure that she had. It turns out that the doctor failed to inform her that the risk of dying from this procedure was much greater than the risk of dying from general anesthesia. When the family filed a medical malpractice case, they argued that the doctor violated the informed consent law of Delaware.
You might think that to win a medical malpractice case based on a lack of informed consent, all you’d have to prove is that the doctor failed to tell the patient about the risks and alternatives that are important in making a decision whether to undergo the procedure, and that the patient was injured by one of the complications that should have been disclosed but wasn’t.
According to the Delaware Supreme Court, you have to prove one more thing in an informed consent case. And what you have to prove is that a reasonable person, after being told the risks and alternatives that the doctor failed to tell you about, would have decided against having the procedure.
Let’s allow that to sink in. If you have serious complications (even death) from a medical procedure, and the doctor failed to tell you about these complications, you have to prove that a reasonable person would have declined the procedure.
If you think that’s just wrong, then you’d be agreeing with me.