Medical Malpractice

Failure to Warn Is Medical Malpractice

When it comes to making important decisions about healthcare, the patient is in charge – not the healthcare professional. A competent adult patient can always refuse treatment. Even if the decision seems to be a poor one, healthcare providers and others must respect it.

Healthcare professionals in all states are required to inform their patients of the risks involved in any test, treatment or procedure, and to obtain informed consent before proceeding. Failure to warn is a common type of medical malpractice.

Information Must Be Shared

Most medical tests, treatments and procedures involve some risk. Because of this, a healthcare professional should provide a patient with enough information so that the patient can make an informed decision. This discussion should cover:

  • The patient’s diagnosis, if known;
  • The nature and purpose of a proposed test, treatment or procedure;
  • The risks and benefits of a proposed test, treatment or procedure;
  • Alternatives (regardless of their cost or insurance coverage);
  • The risks and benefits of these alternatives; and
  • The risks and benefits of refusing a test, treatment or procedure.

    Some states call for a “reasonable” amount of information, but others require “full and complete disclosure.

    Physicians should verify that patients understand this information. Patients share this responsibility, since a healthcare provider is not a mind-reader. A patient must have the chance to consider the information and ask questions. A patient should never feel pressured to proceed.

    Finally, healthcare providers must also inform patients about their actual qualifications and experience in performing a procedure.

    Consent Must Be Obtained

    Informed consent forms generally state that a patient is consenting to a test, treatment or procedure after being fully informed of all the associated risks and discussing possible alternatives. Often, these are standard forms.

    For many routine medical procedures, such as blood draws, standard drug regimens or standard tests, verbal consent (documented in a patient’s record) is often sufficient. Major interventions, such as surgery or involvement in experimental protocols, usually require written documentation.

    Who Else Can Consent?

    Most competent adult patients can make their own informed medical decisions. Sometimes, someone else needs to do this. A parent can consent for a minor child. Consent can be given by a guardian or by someone holding a patient’s durable power of attorney for healthcare. If these do not exist, a family agency can choose a family member to consent.

    Informed consent may not be required prior to treatment in a medical emergency, if a person is unconscious and in danger of a serious outcome or death without prompt action.

    If a healthcare provider discovers a serious medical problem while in the middle of another procedure, and fixes it, the patient probably does not have a claim for lack of informed consent.

    Filing a Med Mal Claim

    If a better-informed patient would have refused a test, treatment or procedure, and if the patient is injured by the procedure, the healthcare provider may be held liable for medical malpractice. Most cases revolve around the issue of exactly how “informed” the consent was. There are two primary considerations:

    1) Whether a reasonable patient would have considered the information sufficient to make an informed decision and

    2) Whether another competent healthcare provider would have informed the patient of the risk.

    Call a Medical Malpractice Lawyer

    The issues surrounding medical malpractice claims based on a healthcare provider’s failure to warn and obtain informed consent can be complicated. Plus, the facts of each case and the laws in each state are unique. This article provides a brief, general introduction to the subject. It is not legal advice. For more detailed, specific information about your situation, please contact a medical malpractice lawyer.

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This article was verified by:
Gail N. Friend | June 29, 2015
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