Informed consent is an important principle in the healthcare industry, as it ensures patients fully understand the benefits, risks, and alternatives before they undergo any medical treatment or procedure. A lack of informed consent also plays a significant role in many medical malpractice cases in South Carolina. Below, one of our South Carolina medical malpractice lawyers explains the concept behind informed consent law and how it plays a critical role in these claims throughout the state.
What is Informed Consent?
A patient gives informed consent when a medical professional educates them about the details of a proposed medical treatment or procedure. The purpose of informed consent is to make sure that all patients make a voluntary and knowledgeable decision regarding their healthcare. The most important elements of informed consent are as follows:
- Full explanation of the treatment or procedure: Medical professionals must thoroughly explain the nature of the procedure or treatment, including what it requires and how it is performed.
- Risks and benefits: Healthcare providers must also inform patients of any risks or benefits associated with the procedure so the patient can consider the possible outcomes and what is best for their situation.
- Alternatives: Patients have the right to hear about other procedures and treatments. This includes no treatment, and the risks and benefits associated with not treating the illness, injury, or condition.
- Questions: All patients should be given the opportunity to ask any questions they have regarding the procedure and to receive answers that are clear and easy to understand.
- Agreement: Once a patient has received all relevant information, patients have the right to agree to proceed with the procedure or treatment. Agreement must be voluntarily and usually, it is obtained through a consent form signed by the patient.
All patients have the right to bodily autonomy. That is, they have the right to agree or deny medical procedures. For this reason, it is of critical importance that all healthcare providers obtain informed consent before proceeding with treatment; if they fail to do so, it is medical malpractice.
Informed Consent and Minor Patients
Just because a person is under 18 years of age does not mean that they will never require invasive and non-invasive treatments alike. The majority of these still require medical professionals to obtain informed consent. However, under the law minors do not have the mental capacity to provide informed consent. This means the law does not consider minors to have the maturity level to understand the risks of certain procedures and make reasonable judgment calls. In these cases, the parents or legal guardians of minors must provide informed consent on the child’s behalf in most cases.
There are some cases when a minor 16 years of age or older can provide informed consent. These cases largely involve non-surgical procedures such as scans, X-ray testing, and some other procedures.
Exceptions to Informed Consent
The law does provide some exceptions to the rules of informed consent, particularly in medical situations that would make obtaining informed consent impossible or impractical. When an emergency situation renders a patient unconscious or otherwise unable to provide informed consent, healthcare professionals can provide treatment or move forward with a procedure without it. Even the most basic of medical treatments, such as measuring a patient’s vital signs, can necessitate an exception to the informed consent law.
Common Examples of Failing to Obtain Informed Consent
Medical professionals may fail to obtain a patient’s informed consent in a number of situations.
Some of the most common of these are as follows:
- Medications: If a doctor prescribes a medication and fails to fully explain its potential risks, side effects, or interactions with other medications, they can be held liable for failing to obtain informed consent.
- Surgical procedures: Patients must be properly informed about the risks of surgical procedures, such as anesthesia complications, bleeding, and infection. If they are not and they become injured, they could have legal grounds for a lawsuit.
- Diagnostic tests: Patients who undergo diagnostic testing without fully understanding the risks, such as exposure to radiation during an MRI or X-ray, can file a claim due to the failure to obtain informed consent.
- Medical devices: Physicians may fail to fully explain the risks of medical devices such as a prosthetic or pacemaker and a patient may suffer injury as a result.
- Alternative treatments: Doctors should inform patients of alternative procedures or treatments before proceeding. If the patient is harmed as a result of not understanding alternative treatments that may be safer or less invasive, it may be grounds for a medical malpractice claim.
Proving a Failure to Obtain Informed Consent
As with all medical malpractice cases, patients must prove certain elements of their case when filing a failure to obtain informed consent claim. The four elements to establish are as follows:
- Duty of care: Establishing a duty of care requires patients to show that a medical professional had a legal obligation to inform them about the risks and procedures associated with a proposed medical procedure or treatment.
- Breach of duty: Proving a breach involves showing that the medical professional failed to sufficiently provide the necessary information to the patient.
- Causation: The lack of informed consent must have directly caused the patient to suffer injury or other losses. Showing the direct link requires patients to show that they would not have agreed to the procedure if they had been fully informed.
- Damages: Medical malpractice claims are meant to compensate patients for any harm they suffered due to negligence. If there are no injuries or other losses, there is nothing to compensate for and so, no medical malpractice claim.
An important difference when proving medical malpractice claims as opposed to other types of personal injury cases is that you are required to submit an expert affidavit. This is a statement from a medical professional in a similar field as the defendant who can testify that they did not act in a reasonable manner or provide the necessary standard of care.
Call Our Medical Malpractice Lawyers in South Carolina for Help
Proving any type of medical malpractice is never easy. At Rikard & Protopapas, our South Carolina medical malpractice lawyers can overcome any challenges that may arise so you obtain the full and fair damages you are entitled to. Call us today or contact us online to schedule a consultation and to learn more about how we can help.