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Lack of Informed Consent

Consider this hypothetical scenario — You’ve been suffering back pain for a while, and your doctor refers you to a surgeon to discuss whether a back operation might help. You go to see the spinal surgeon and you talk about what to expect and whether the surgery will help you. You learn that you’ll have to take several weeks off from work while you recover, and that you can expect to feel a lot of pain from the procedure. You learn that there’s a risk of bleeding or infection whenever you have surgery performed, and that you could react to the anesthetic. But it sounds like surgery may offer a solution to your back pain, so you agree to the procedure and hope for the best.

You follow your pre-operative instructions, check into the hospital the morning of your surgery, and everything proceeds on schedule. When you wake up from the anesthesia, you learn that you suffered nerve damage because of the surgery and are now partially paralyzed — and when you talked about what to expect, your surgeon never mentioned that this was a possible risk of the procedure.

When you are harmed by the negligence of a medical provider, you may be able to seek compensation through a medical malpractice claim. In the hypothetical scenario, if the nerve damage happened because the surgeon’s hand slipped while operating on you, that may be negligence and give rise to a malpractice claim.

But in Illinois you also may have a separate claim based on lack of informed consent because the surgeon failed to explain that your surgery could result in nerve damage — a common potential risk of any back surgery.

What is Informed Consent?

Informed consent is just what it implies — you have the right to consent to any medical treatment or procedure, and your medical provider is supposed to give you enough information about the treatment or procedure so that you can decide if you agree to it. Included in that is information about reasonably foreseeable risks, outcomes, alternatives to the treatment or procedure, and what will happen if you decline the treatment or procedure. A physician doesn’t have to explain every possible risk, but does have to explain the ones that are reasonably foreseeable.

In the case of the hypothetical back surgery, if the surgeon failed to discuss the possibility of nerve damage as a result of the surgery — which is a risk even of a properly performed back surgery — then you as a patient didn’t have enough information to properly consent to the procedure and you may have a claim for lack of informed consent.

Informed consent is based on the idea that you have the right to control what happens to your body and to make decisions about your health. As the patient, you are in charge. A doctor can only make decisions without your consent in very limited circumstances that include:

  • Emergency — Say you’re in a car accident and suffer a head injury and need emergency surgery to stop bleeding inside your brain, but you’re unconscious because of the head injury and your next of kin isn’t there to give consent on your behalf. In that situation, you’re not able to give consent and doctors need to act quickly to save your life, so there’s an exception to the requirement for informed consent. There’s a presumption that you would consent to treatment to save your life.
  • Risk of Significant Harm — When the information about the procedure would make you so distraught or ill that you would be unable to make a rational decision about the treatment or procedure, then your doctor may be able to exercise his or her sound medical judgment not to disclose the information.
  • Compulsory Tests — If you are legally required to comply with a test or treatment, then informed consent is not required.
  • Incompetence — Some people are legally unable to give consent to a medical treatment or procedure. That generally includes children and people with mental disabilities. A parent or guardian may have to provide consent on behalf of the incompetent person, but a doctor may be able to provide treatment without a parent or guardian’s consent in the event of an emergency, particularly one that is life-threatening.

Typically when you agree to a procedure such as a surgery, your medical provider will ask you to sign a consent form. However, if even if you sign the form you may not be deemed to have given informed consent if the doctor didn’t actually explain the risks of the procedure to you.

Express vs. Implied Consent

Consent can come in two forms: express or implied. Express consent means that you agree in writing or verbally to the treatment or the procedure. That may mean signing the form, or saying “Yes, I want the surgery.”

Implied consent is less straightforward and is interpreted based on circumstances. For example, if during your back surgery a blood vessel ruptures and must be repaired to stop the bleeding, even though you never directly said, “Yes, repair the blood vessel” your consent to the additional necessary procedure is implied because you consented to the back surgery.

What You Must Prove

To be successful with a lack of informed consent claim, you must prove that:

  • The doctor had a duty to inform you about the risks of the treatment or procedure
  • The doctor failed to fully disclose the risks
  • You wouldn’t have agreed to the treatment or procedure if the doctor had informed you about the risks
  • You were harmed because the doctor failed to inform you

Let’s return to the back surgery scenario. Let’s say the doctor had told you about the risk of nerve damage if you got the surgery, but you had already exhausted other alternatives such as prescription pain killers and pain management injections. If you would have agreed to the back surgery anyway even knowing there was a risk of nerve damage, then you would not have a claim for lack of informed consent.

However, if you did know the risk and thought it was too great and wanted to give another alternative a shot at relieving your pain instead of undergoing surgery once you knew that you could suffer nerve damage, then the lack of information was material to your decision and you could have a claim.

How a Lawyer Can Help

Lack of informed consent is different than negligence, and can be a complicated legal concept. When pursuing this type of claim, it’s important to have someone on your side who understands the nuances of the law and has experience with medical standards and what informed consent means. A skilled medical malpractice attorney can help you navigate the complexities of such a claim and gather the evidence to support your claim that you lacked the information to properly consent to the procedure.

When you pursue a claim for lack of informed consent, Illinois requires that you must have an expert witness ready to support your claim that the risk was of a nature that the medical provider should have disclosed, and that your harm was caused by the failure to disclose the risk. An experienced medical malpractice lawyer will have a network of medical experts at his or her fingertips to call upon when you want to pursue your claim.

Further, a good medical malpractice lawyer will have a deep understanding of medical malpractice insurance and how insurance companies operate, and use that knowledge to negotiate the best possible settlement for you. If no settlement can be reached, your lawyer can then file a malpractice lawsuit and take your claim to court.

Wondering if you have an Illinois malpractice claim? Contact Staver Law Group for a free legal consultation at . We are available 24/7 to help.