Lack of Informed Consent

Before you are treated by a doctor, in most cases, you as a patient will be asked to provide your “informed consent” for the doctor to proceed. In most cases, providing informed consent includes signing a form to indicate that you understand the treatment you are about to undergo and that you give the doctor and other medical personnel permission to perform the indicated medical procedure

Informed consent in South Carolina and other states is based on the idea that people have the right to not be touched by someone else against their will. In a broader sense, as a patient you have a right to know what a doctor, nurse or other medical professional plans to do to you and what the risks are.

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If you have not provided informed consent for medical care and you are injured by that procedure or treatment, the medical professionals involved may be held liable for acting with a lack of informed consent, a form of medical malpractice. Our medical malpractice lawyers at Joye Law Firm may be able to obtain compensation for you for the harm done to you.

Our medical malpractice lawyers will be happy to review your case to determine whether you may have a medical malpractice claim involving lack of informed consent. Call Joye Law Firm at 877-936-9707 or use our online form to set up a free case review.

A Patient’s Right to Know and Understand

Common law dictates that one person may not touch another person without consent. This is the basis of laws against assault and battery. But because medical procedures generally involve touching a person, medical professionals must have permission to perform their work. This is the basic idea behind obtaining informed consent, and why some medical malpractice cases involving lack of consent include claims of “medical battery.”

Through case law in South Carolina, most notably in a case known as Hook v. Rothstein, informed consent in our state has come to include notifying a patient of:

  • The doctor’s diagnosis of the medical problem
  • Nature of the contemplated treatment
  • Probability of success
  • Risks of undergoing the proposed treatment
  • Patient’s prognosis if treatment is not provided
  • Alternatives to the proposed treatment

The courts also expect a doctor to provide any other information that a “reasonable medical practitioner” in the same branch of medicine would provide under the same or similar circumstances.

In most cases, a patient will be asked to sign a form that contains the required information, and many times the doctor will review the information with the patient verbally and also sign the form. This is considered “expressed consent.” Undocumented, or “implied consent,” would be an understanding that a doctor would treat potentially dangerous complications that arose during the primary procedure, such as profuse bleeding or heart failure.

South Carolina’s Adult Health Care Consent Act makes provisions for patients who are “unable to consent,” which means unable to appreciate the nature and implications of their condition and the medical care proposed, unable to make a reasoned decision concerning the proposed health care, and/or unable to clearly communicate their decision. The ability to provide informed consent for such a patient passes to an appointed guardian, spouse, or a person with health care power of attorney, etc., as outlined by statute.

Typically, parents may consent to the medical treatment of their children who are minors (younger than 18). But, in South Carolina a person who is 16 years old or older is given the right to provide or withhold consent for medical treatment other than necessary surgical procedures.

Doctors generally may act without consent in emergency situations, such as to save a life or relieve a patient’s suffering.

Lack of Informed Consent and Injury

In its strictest sense, “informed consent” means that the patient has the knowledge and the ability to make a choice about his or her health care.

A medical malpractice claim based on lack of informed consent must show:

  1. The patient was not properly informed about medical treatment that caused him or her to be injured; and
  2. Had he or she been informed, the injury would not have occurred because treatment would have been declined.

There are many factors to be considered in a medical malpractice lawsuit based on lack of informed consent. For instance, a patient who consented to medical treatment but withdrew consent during the procedure, perhaps because it was unduly painful, could have a valid claim of lack of consent if he or she could also demonstrate that harm was done.

The variables involved in the practice of medicine and the law make it best to consult an experienced South Carolina medical malpractice lawyer if you believe your inability to make an informed decision and provide consent for medical treatment was a factor in your injury.

Contact Our South Carolina Medical Malpractice Lawyers Today

If you or a loved one has been injured by a medical procedure that you don’t think you or your family member was adequately advised about, you may have a valid medical malpractice claim based on a lack of informed consent. A South Carolina medical malpractice lawyer from Joye Law Firm can investigate your case and determine whether you may be entitled to obtain compensation for your pain and suffering as well as for your medical expenses and other losses.

Just call Joye Law Firm. We can provide a free and confidential initial consultation about your legal options. Call 877-936-9707 or use our online case evaluation form today.

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