Posted in Medical Malpractice on November 29, 2020
Before a medical professional can perform a procedure on a person, they must typically gain informed consent from the patient. There are some exceptions to this, such as emergency situations where the medical professional may not have the ability to obtain informed consent. However, informed consent must be obtained in most medical circumstances.
Failing to obtain informed consent can be considered a form of medical malpractice. If you or a loved one has been a victim of medical malpractice in California, the Long Beach medical malpractice attorneys at Harting Simkins & Ryan, LLP can help. Here, we want to discuss informed consent laws in California and how they may apply to your situation.
Medical Malpractice in California
Researchers at Johns Hopkins University have stated that preventable medical errors are the third leading cause of death in the country. Cases of medical malpractice are devastating for victims and their families, including incidents where a person is harmed because a medical professional did not obtain informed consent.
According to the definition from the American Medical Association (AMA), “The process of informed consent occurs when communication between a patient and physician results in the patient’s authorization or agreement to undergo a specific medical intervention.” Informed consent conversations can also take place with a patient’s surrogate if the patient does not have the ability to make decisions on their own behalf.
During a discussion about whether or not to authorize a medical procedure, the medical professional must explain the benefits and risks of the proposed procedure, and the patient needs to be given the opportunity to ask questions so they can gain an understanding of the proposed procedure. Patients are well within their rights to decline the proposed treatment if they decide that the benefits are not worth the risks.
Under California law, there is no specific definition of informed consent. However, informed consent has been well established in California case law and generally means that the patient must “receive sufficient information to make a meaningful decision” about their healthcare (Cobbs v. Grant (1972) 8 Cal.3d 229). Problems can arise if a medical professional completes a procedure without obtaining informed consent. Issues can also arise if a medical professional fails to disclose a significant risk associated with a procedure, thereby not giving the patient enough information from which to form an opinion.
A patient in California could make a claim against a medical professional citing medical battery. In order to prove this, they will need to show that:
- The procedure was performed without consent, or
- They gave conditional consent for the procedure, the conditions were not met, and the medical professional performed the procedure anyway, or
- The patient consented to one procedure, but the medical professional performed a substantially different procedure.
Patients may also claim medical battery if there was an absence of truthful information, meaning the medical professional told the patient that they needed to get a procedure they did not really need or were unclear about the extent, nature, or dangers of the procedure.
How an Attorney Can Help
Medical malpractice cases can become incredibly complex, and any person who thinks they have been harmed because a medical professional did not obtain informed consent needs to seek assistance from an injury attorney immediately. Most injured patients do not have the resources or legal expertise necessary to fully investigate their case and obtain the compensation they deserve.
However, a skilled attorney in California will understand these cases, use their resources to investigate the incident, stand up to aggressive insurance carriers and legal teams, and help obtain the compensation you are entitled to.