How Do Lawyers Prove a Lack of Informed Consent?

June 1, 2021 Posted In Medical Malpractice

Many different procedures require medical providers to obtain informed consent from patients before performing them. If your doctor did not get your informed consent and you suffered any type of injury from a procedure, you may have a medical malpractice claim.

Proving a Lack of Informed Consent in a Medical Malpractice Case

Proving a lack of informed consent is linked to a patient’s injury can be complicated. Like all medical malpractice cases, the more evidence you have to support your claim, the better. If you’ve been injured because medical personnel failed to obtain informed consent, an attorney will prove it by establishing: 

• A doctor-patient relationship existed (e.g., medical records);
• The healthcare provider did not have informed consent (e.g., unsigned consent form, witness testimony, your testimony that had you known about the risk or outcome, you would not have agreed to the treatment or procedure)
• Extensive proof of your injuries (e.g., a second opinion from another doctor, past medical records, witnesses), and,
• A connection between your injuries and the doctor’s failure to obtain your consent (e.g., medical expert testimony)

Even if you signed a waiver that explained the risks and benefits of the procedure or treatment, you have the right to file a medical malpractice lawsuit if your lawyer can prove any of the following circumstances apply to your case: 

• The waiver failed to inform you about a known complication, and you suffered from that complication during the procedure.
• The waiver contained ambiguous language, and as a result, you did not adequately comprehend the risks involved. 
• The waiver did not accurately describe the risks or included misinformation about the complications you suffered. 
• The nature of the physician’s negligence was preventable.
• The negligent act or omission rises to the level of gross negligence.

The Definition of Informed Consent 

Providers and healthcare institutions in California are required by law to obtain informed consent from patients before administering tests, procedures, other therapeutic interventions, or allowing participation in research studies. Unless it is an emergency, if a doctor acts without informed consent, it is considered a serious medical malpractice violation. 

Consent is considered “informed” after the patient understands: 

• Their diagnosis
• The treatment the doctor wants to provide
• The doctor’s rationale for providing the treatment
• The procedure’s benefits and risks
• The benefits and risks of not undergoing the procedure
• Alternative options along with their risks and benefits

The process of obtaining informed consent is typically a document or form signed by the patient that states they understand all of the above information and permit the healthcare provider to proceed. This waiver also typically releases facilities and medical professionals from liability if a patient suffers an injury in San Bernardino or dies during a procedure or from the treatment. 

Contact Us For Help 

If you believe you are a victim of medical malpractice, speak to our Riverside Medical Malpractice Attorney as soon as possible. Call (951) 688-0006 or message us online so we may begin with your free case consultation.