Definition of Informed Consent
Elements of Informed Consent
The doctrine of informed consent is based on the idea that every person should have a say in what happens to his or her body. Explaining the procedure or treatment and the expected outcomes and informing a patient of the risks prior to performing the treatment is both legally mandatory and ethically sound.
Ohio Revised Statutes 2317.54(A) lists four items of information that doctors must provide in order to fulfill their responsibility of informed consent:
- “The nature and purpose of the procedure or procedures”;
- “What the procedures are expected to accomplish”;
- “Reasonably known risks”; and
- “The names of the physicians who shall perform the intended surgical procedures” (except in emergency situations).
Furthermore, the law specifies that patients must acknowledge that they have received the information and that all their questions regarding the procedure have been satisfied. They also must provide written consent in order for it to be legally valid.
Exceptions to the Rule
There are several exceptions to the rule. First, as mentioned above, emergency situations do not require consent. The fact that the patient is in the emergency room is “implied consent.” Obtaining informed consent is also not required from anyone deemed incompetent or intoxicated, though physicians must get consent from a person with legal authority to provide it on behalf of the patient. Likewise, minors' consent isn’t required; their parent or guardian's consent is.
Proving Lack of Informed Consent
If you or a loved one suffered injuries and complications after a medical procedure for which you were not informed of the risks, you might be able to pursue a medical malpractice claim based on lack of informed consent.
However, proving these types of cases can get complicated. A medical expert’s testimony will be required in order to demonstrate the case. Your case must be able to satisfy the following three elements in order to establish your case:
- Failure to disclose – the physician did not disclose the risks of the procedure with the patient;
- Cause – risks that the physician didn’t disclose materialized and caused the patient injury; and
- Reasonability – a reasonable person in the patient’s position would have declined the procedure had he or she known about the risks.
The last element, reasonability, is part of what makes proving lack of informed consent so difficult. It will be up to the jury to decide what a “reasonable” person would do. It generally takes a well-prepared lawyer with a convincing case to demonstrate a malpractice suit successfully.
Obtaining Counsel in Cleveland for a Malpractice Claim
If you or a loved one suffered an injury after a treatment for which you were not aware of the risks, discuss your case with a malpractice attorney in your area.
To speak with a lawyer in Cleveland, contact our team at Ryan, LLP. Call our office today
at (877) 864-9495 to schedule a free consultation so we can examine your situation and discuss your legal options.