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How Informed Consent Impacts Suing for Medical Malpractice

The Thomas Law Firm, PLLC March 28, 2023

Words Spelling Medical Malpractice with StethoscopeIn Virginia, healthcare providers are often required to obtain informed consent from patients before performing medical procedures or providing specific treatments. In addition, the physician must educate the patient about the benefits and potential risks involved in the treatment or procedure. If the patient suffers an injury or medical complication without giving informed consent to the procedure, they may be eligible to seek damages through a medical malpractice claim or lawsuit. 

At The Thomas Law Firm, PLLC, I have the skill and knowledge to support, direct, and represent clients in their medical malpractice claims. As an experienced Virginia personal injury attorney, I can work to understand your particular situation, enlighten you about informed consent, and determine whether you have a claim against the medical provider. My firm proudly serves clients across North Chesterfield, Henrico, Richmond, and Petersburg, Virginia. 

Understanding Informed Consent  

Medical treatments and procedures have different risks, negative consequences, and side effects. Under the law, doctors are required to enlighten their patients about the possible outcomes and risks of the procedure. After giving the patient detailed information about the medical treatment and procedure, the healthcare provider must also get the patient's agreement. This is referred to as informed consent. 

Furthermore, informed consent must be obtained before starting any procedure or treatment. This information must include the following: 

  • A basic description of the medical treatment or procedure and how it will be performed. 

  • The reason for performing the procedure and the anticipated outcome. 

  • A list of potential risks, side effects, and complications involved with the procedure. 

  • Any possible alternative treatments. 

  • The possibility of performing the procedure successfully. 

Patients who understand all of the aforementioned information will be considered informed enough to proceed with medical treatment. 

"Express" vs. "Informed" Patient Consent  

Additionally, patient consent may be expressed or informed. Patient consent will be considered expressed if the patient signs a medical authorization form that allows the doctor to proceed with the medical treatment.

Conversely, with informed consent, the patient has all the information they need about the treatment – as mentioned above – then authorizes the physician to go ahead. 

When is Informed Consent Not Required?  

While getting informed consent is required before performing most medical procedures, there are certain exceptions, including: 

  • When there is a medical emergency and not enough time to educate the patient about the potential risks. 

  • When it is a medical emergency and the patient is incapacitated. 

  • When the patient is emotionally fragile and may refuse the required treatment when informed about the possible risks. 

  • When disclosing too much information about the required treatment will make the patient anxious or distressed. 

Who Can Give Informed Consent?  

In Virginia, any adult – a person who is 18 years or older – or married person may consent to routine medical care, procedure, or surgery. In case the patient is a minor, their parent or legal guardian must consent for them, except: 

  • The minor patient is testing for a sexually transmitted disease (STD). 

  • The minor patient is receiving medical services required for pregnancy, birth control, or family planning. 

An experienced attorney can evaluate your unique situation and determine whether you can sue for medical malpractice even after giving informed consent to the procedure. 

Can I Still Sue for Malpractice If I Signed an Informed Consent?  

Additionally, when a patient signs an informed consent form, the physician is only required to provide the patient with the medical procedure or treatment agreed upon in the consent form. Essentially, going beyond the agreed-upon treatments or providing another medical procedure may be regarded as medical negligence. 

If the patient suffers an injury or medical complication due to the doctor's negligence or a different procedure that wasn't consented to, they may be entitled to file a medical malpractice claim or lawsuit. A reliable Virginia medical malpractice attorney can help file your claims and pursue your rightful financial compensation. 

What Factors Will Be Considered to Determine "Informed?"  

According to statistics, an estimated 20,000 medical malpractice lawsuits are filed in the United States each year, on average. In order to determine whether the medical provider (defendant) should have informed the patient (claimant) of the potential risks, the court will consider the following factors: 

  • Whether a competent medical provider or physician would have informed the patient of the possible risks and complications. 

  • Whether a reasonable patient in the claimant's situation would decide against the medical procedure after knowing the possible risks and complications. 

A trusted lawyer can help establish liability in your claims and attempt to recover the maximum possible damages for your injuries. 

Consent on a Different Procedure  

However, if you give your informed consent for procedure A, but the medical professional performs procedure B, you are within your rights to file a claim or lawsuit against the doctor based on lack of informed consent. 

Conversely, if procedure B was required to correct a serious medical issue that the physician discovered during the treatment, you may not have enough reason to file a claim against the doctor. A skilled attorney can review your unique situation and determine the best way to proceed with your claims. 

Experienced Guidance Every Step of the Way 

Signing an informed consent form is often required before undergoing a medical procedure. Regardless, this doesn't totally prevent you from filing a claim or lawsuit against the healthcare provider for medical negligence or malpractice. At The Thomas Law Firm, PLLC, I have the resources to advocate for the best interests of medical malpractice patients and their loved ones. 

As your legal team, I can investigate every aspect of your personal situation, determine whether you gave informed consent to the specific procedure, and explore your available options to seek damages. Using my broad knowledge, I will fight vigorously to protect your legal rights, hold the negligent medical provider liable, and help you pursue the financial justice you deserve. 

If you or someone close to you were injured due to medical malpractice or negligence, you may pursue damages. Contact me at The Thomas Law Firm, PLLC, today to speak with a seasoned personal injury attorney. My firm proudly serves clients across N Chesterfield, Henrico, Richmond, and Petersburg, Virginia.