Patients have a right to choose whether to obtain medical treatment and what type of treatment to undergo. The principle of "informed consent" requires that medical practitioners provide conscious patients with information as to all the potential benefits, risks, and alternatives involved in any medical procedure or course of treatment and must obtain the patient's consent before commencing treatment. For a patient's consent to be valid the patient has to be competent to give the consent and the consent must be voluntary. Thus, informed consent is defined as a process by which a fully informed patient can make choices about his or her healthcare. In general, informed consent should include the following:
- the nature and purpose of the proposed treatment or procedure
- the patient's diagnosis, if there is one
- the risks and benefits of the proposed treatment or procedure
- the alternatives to the proposed treatment or procedure
- the risks and benefits of the alternatives to the proposed treatment or procedure
Many states have statutes or regulations outlining what is required for informed consent as well as what types of procedures require that informed consent be obtained. Not all medical situations require that informed consent be obtained. For example, the taking of a patient's blood pressure or the taking of a temperature would not require the healthcare practitioner to obtain informed consent. Invasive procedures such as surgery and anesthesia almost always require informed consent for the conscious patient.
The failure to obtain a patient's informed consent could result in a lawsuit. For example, a physician could be liable if one of the risks of the medical procedure occurred and the physician failed to inform the patient of the possibility of the risk occurring. Likewise, if a physician failed to inform a patient of the risks of not going forward with a particular treatment or procedure, the physician could be liable if the patient suffers injury as a result of the nonaction. Lawsuits for failure to obtain informed consent can either take the form of a malpractice action or an action for battery. A battery occurs when there is an unwanted touching. Thus, a medical procedure that was not authorized can be deemed a battery. A plaintiff in an informed consent suit must show that the healthcare provider unreasonably failed to obtain informed consent and that a reasonable patient in plaintiff's position would or would not have chosen the treatment had the information been provided. For a medical malpractice action, the plaintiff would also have to show damages.
A patient's presence in the emergency room or intensive care unit does not imply informed consent to all procedures. Informed consent must still be obtained if the patient is conscious and competent. If a patient is incompetent and/or unconscious, a legal guardian may be appointed to make healthcare decisions and give informed consent. Parents can in most instances give informed consent for their children. In emergency situations where the life of the patient is at risk, informed consent can be implied if the patient is unconscious or there is not enough time to obtain informed consent.
The fact that a patient has given his or her informed consent to a medical procedure does not, however, mean that the patient has given up the right to sue for malpractice. The fact that a patient has given consent to the procedure does not mean that the patient consented to a procedure performed improperly or negligently.
Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.