Failure to Obtain Informed Consent

Before a doctor can perform a non-emergency medical procedure, they need to get your consent. Consent is more complicated than you might think. In Florida, when a doctor fails to obtain informed consent, and you suffer an injury because of this, the doctor may be liable for medical malpractice or battery. If you were a victim of a failure to obtain informed consent prior to a surgery or another procedure, the Ocala medical malpractice lawyers at the Dean Law Firm may be able to help.

In Florida, your doctor is not supposed to perform a dangerous medical procedure on you without providing an explanation of the risks entailed. However, informed consent is assumed in medical emergencies or when you are unconscious. The informed consent law requires that you, as the patient, be told the nature of the procedure, the substantial dangers and risks of it, and any reasonable alternatives to doing the procedure. You need to be advised of these things in order to be considered informed enough to provide real consent. Additionally, you should be told who is performing the surgery. For example, if a non-doctor is assisting, you should have the name of that person. It may not be informed consent if you are not told who is going to perform significant aspects of the procedure.

Simply because you have signed a consent form does not mean that you have given informed consent. A valid written signed consent raises a rebuttable presumption of valid consent, but it is important for your attorney to investigate the situation to know whether it was valid or whether there is evidence to rebut it. The signed form will be evidence in your case, but there may be other important evidence that shows that you were given the consent form while you were too sedated to understand what was happening or that you were never given explanations that should have been provided.

In some cases, doctors let nurses take care of informing the patient, and nurses do not always provide the information necessary to make a decision. You only gave informed consent if you received the requisite information and then consented.

There are other issues in these types of cases as well. Even if a doctor did not get informed consent, if the medical procedure is one that a reasonable patient would agree to have, the doctor might not be liable. The question is whether a reasonable person would have a general understanding of the procedure based on what was provided by the doctor, whether they would understand the alternatives and risks, and whether the patient would reasonably undergo the treatment if they had been told.

Under the statute, you cannot recover compensation from a licensed doctor, advanced registered nurse practitioner, or physician assistant based on a failure to obtain informed consent if the provider's actions in getting consent were in accord with the accepted standard of medical practice among similar members of the medical profession in a similar medical community to that of the health care provider at issue.

Damages that you may be able to recover in a failure to obtain informed consent case include compensation that puts you back into the position in which you would have been had the failure not occurred. These damages vary depending on the situation, but they may include lost wages, further medical treatment expenses, pain and suffering, loss of consortium for your spouse, and mental anguish.

You may have a basis to bring an informed consent claim even if the defendant chose a course of treatment that was not flawed and that was appropriate to the situation. However, you have the right to know what the risks of a dangerous procedure are, particularly when there are alternatives. At the Dean Law Firm, our experienced Ocala lawyers can represent you in a lawsuit arising from a failure to obtain informed consent. Contact us at 352-387-8700 or via our online form. We also serve people who have been subjected to medical malpractice in The Villages, Crystal River, and other areas of Citrus, Levy, Sumter, Marion, and Lake Counties.