Patients’ Rights in the Exam Room: Informed Consent & Legal Options

Learn about informed consent in medical treatment, including the different types, when it’s required, and the legal implications if it’s missing

In the world of medicine, trust is paramount. As a patient, you entrust your doctor and other healthcare providers with your well-being, relying on their expertise to guide your treatment decisions.

A crucial part of this trust is informed consent, a legal concept that means you have the right to understand the risks and benefits of any medical procedure before consenting to it.

But what exactly is informed consent, and when does it apply? Are there situations where it can be bypassed?

In this article, we’ll discuss the legalities of informed consent in Florida, exploring different acceptable forms, when it’s required, and the potential legal options available if you’ve been harmed after a procedure performed without your informed consent.

If you have questions or suspect you may have a case, reach out to the knowledgeable Tampa medical malpractice attorneys at Palmer Lopez to schedule a free consultation where we can discuss your rights and legal options.

What is informed consent?

Informed consent occurs when a patient agrees to a medical procedure after being educated about the risks, benefits, and alternatives by their treating physician. It’s crucial for establishing trust and promoting shared decision-making between patients and their medical providers.

So, what does informed consent entail?

According to the AMA Code of Medical Ethics, when getting informed consent from a patient, a physician must do the following:

Assess the patient’s comprehension. A doctor or other qualified healthcare provider must first determine if the patient can understand the medical information and the consequences of different treatment options and make an independent choice.
Provide essential information. This includes explaining the diagnosis (if known), the nature and purpose of proposed interventions, and the risks and potential benefits of all options, including the choice to decline treatment.
Document the process. The conversation and the patient’s or surrogate’s decision must be recorded in the medical record. If specific written consent is given, this should also be included in the medical documentation.

It’s important to note that the specific information required for informed consent can vary depending on the complexity of the procedure and your medical condition. Regardless of your particular medical situation, however, you have the right to ask questions and request additional information so you can feel comfortable before making your decision.

Can informed consent be verbal?

Yes, informed consent can indeed be verbal. In fact, the law allows for a few different types of informed consent in medical settings, depending on the situation, as outlined below.

Express consent

This form of consent is explicitly granted by the patient, either verbally or in writing:

Written consent is common for surgical procedures or other high-risk treatments, as it provides clear documentation of the patient’s agreement to the proposed medical intervention. The patient’s signature on the document generally indicates their informed consent.
Verbal consent, while also valid, is often used for less invasive or lower-risk procedures and should still be accompanied by comprehensive discussions of the risks, benefits, and alternatives. In such cases, this conversation should be documented in the patient’s medical record.

Implied consent

This type of consent is inferred from a patient’s actions rather than an explicit verbal or written agreement. It’s generally assumed a patient has consented to a procedure if they don’t object when a doctor performs a routine medical intervention during an examination or treatment.

For example, if a patient goes to the doctor for a strep throat test and the doctor swabs their throat without asking for permission, implied consent applies. However, implied consent only applies to minor procedures that are generally considered a standard part of the examination or treatment.

Please note that even though implied consent exists, it’s never a substitute for a thorough explanation of the risks and benefits of more complex procedures. A doctor should always strive to obtain a patient’s express consent, either written or verbal, before proceeding with any significant tests or procedures.

What procedures require a consent to treatment form?

Informed consent is a crucial part of many medical procedures, but it’s not required for everything. Here’s a general guideline to help you understand when informed consent typically comes into play:

Surgeries. This doesn’t just apply to high-risk surgeries like coronary bypass surgery or emergency spinal surgery following a car accident. It applies to all types of surgeries, regardless of complexity. You have the right to understand the potential risks, benefits, and alternative approaches before undergoing any operation.
Anesthesia. Before being administered local, regional, or general anesthesia, you should be informed about the potential risks and side effects associated with it.
Clinical trials. Participating in a clinical trial involves testing new medications or procedures. Understanding the potential benefits and risks is essential before enrolling in a trial, and informed consent is mandatory.

Invasive procedures. Any procedure that involves inserting instruments or needles into your body typically requires informed consent. Examples include biopsies, colonoscopies, cardiac catheterizations, endoscopies, HSG procedures, and certain injections (like penile injections and vaccines).
High-risk treatments. Procedures with a significant risk of complications or side effects require thorough informed consent discussions. This could include radiation therapy, chemotherapy, and certain medications (such as fentanyl and other opioids).

While these treatments require informed consent, any medical intervention that could significantly affect your health or well-being should involve a thorough discussion of the potential risks, benefits, and alternatives to ensure you’re fully informed before proceeding.

Can informed consent be bypassed?

Yes, in some cases, informed consent can be bypassed, or individuals may not be legally allowed to provide informed consent for themselves. Here are some instances where this might occur:

Minors. Generally, minors who are under 18 cannot provide informed consent. Instead, consent must be obtained from a parent or legal guardian.
Mental incapacity. Adults who lack the mental capacity to make informed decisions due to conditions such as severe mental illness, dementia, or temporary incapacitation (e.g., severe intoxication or head injury) cannot give informed consent. A legally appointed guardian or a family member may be asked to give what is called “surrogate consent.”
Emergencies. When an emergency situation arises where the patient is unconscious or unable to communicate and waiting for consent would increase the risk of death or severe harm, medical professionals in emergency rooms and hospitals are permitted to provide necessary treatment without prior consent. Once the situation stabilizes, consent for further treatment should be sought from the patient or a surrogate.

Can I sue for lack of informed consent?

Yes, you can file a lawsuit against a hospital or healthcare provider if you were not fully informed about the risks, benefits, and alternatives of a medical procedure or treatment, and you would have refused the procedure if you had known all the facts.

This type of legal case argues that the healthcare provider did not meet their duty to inform you properly before proceeding. To win such a case, you would need to prove that this failure led directly to harm or injury.

For example:

Suppose a patient opts for cosmetic surgery, such as a rhinoplasty (nose job), based on the understanding that it’s a routine and relatively safe procedure with minimal risks. The surgeon, however, fails to adequately inform the patient about significant possible complications such as breathing difficulties, infection, or an outcome where the nose could be asymmetric or functionally impaired.

If a botched cosmetic surgery results in severe complications like these, and the patient was not made aware of such high risks before consenting to the procedure, they might have a strong case for a lawsuit.

This would be based on a lack of informed consent, arguing that if they had known the full extent of the risks, they would not have agreed to undergo the surgery. Such a lawsuit would seek compensation for the physical and psychological damages resulting from the unforeseen complications.

Get help from an experienced Tampa medical malpractice attorney

If you believe you’ve suffered an injury due to a lack of informed consent during a medical procedure, it’s crucial to take action to protect your rights and potentially receive compensation for your medical bills, lost wages, pain and suffering, and more.

With more than 35 years of experience in medical malpractice law, the attorneys at Palmer Lopez are ready to help you navigate this challenging situation. We can evaluate the specifics of your case, provide you with a clear understanding of your legal options, and guide you through the complexities of filing a lawsuit in Florida.

We’re dedicated to gathering the necessary evidence, proving the failure to obtain informed consent, and advocating on your behalf for the compensation you rightfully deserve.

Don’t hesitate to reach out to us for a free consultation to discuss how we can support you in addressing the wrongs you’ve experienced and securing the justice you deserve.

References

AMA Code of Medical Ethics 2.1.1 Informed Consent. (n.d.). https://code-medical-ethics.ama-assn.org/sites/amacoedb/files/2022-08/2.1.1.pdf