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Issues in Malpractice: The Question of Informed Consent

Recoery, NurseIt is a critical part of the relationship between a patient and their doctor that all relevant information should be shared at all times. Nowhere is this more important than when discussing a major surgical procedure. Before anything occurs, a doctor must obtain informed consent from the patient - but sometimes, there can be some doubt as to what truly constitutes ‘informed.’ If you are misled or not given complete information, your consent may not truly be able to be called informed, and you may have a legal claim on your hands.

Informed Consent and Disclosure of Risks

Informed consent (IC) is defined in California as “your agreement to a proposed course of treatment based on receiving clear, understandable information about the treatment’s potential benefits and risks.” This applies not only to patients of surgeons, but also to patients of psychiatrists and others who hold Doctor of Medicine degrees. This is important to understand, because many define informed consent incorrectly as merely being advised that a treatment is dangerous - that is not enough to qualify as ‘informed’ under California law. A doctor has a legal duty to disclose all reasonable risks to the patient before going ahead with a procedure.

The question that is often asked at this point is, what risks are considered ‘reasonable’ enough to warn a patient about? The answer will obviously depend on the specific situation, but there are two major standards that are in use by different states. The first is whether or not another doctor of similar age, experience and ability would have disclosed the risk in question. The second is whether an average patient (with the same history as the patient in question) would have declined treatment if they had better known the risk. California uses an amalgamation of both of these standards, asking both patient and doctor to evaluate their conduct.

Bringing Suit

There are two major civil causes of action under which most people file suit if they feel they have been injured by a lack of informed consent. The first is battery, which at common law is defined as an intentional act, done without permission, upon the person of another. Most states have evolved this definition further, but in California, the common law definition still applies as civil battery and has not been codified into a statute, only into a crime. (Civil and criminal causes of action are not the same.) This cause of action most often appears in instances where doctors perform a completely different procedure on a person than that to which the patient consented.

The second cause of action is more commonly found in medical malpractice cases: professional negligence, defined specifically in California law as a reckless or wanton act or omission by a service provider that results in personal injury or wrongful death. In a medical context, it means that a doctor, who owes a legal duty to their patients to ensure that their care comports with appropriate professional standard, breached that duty. You must also be able to show causation (that the doctor’s act or omission was the direct cause of your injuries). Between battery and professional negligence, a significant portion of California’s medical malpractice claims are grounded in some aspect of a lack of informed consent.

Contact an Experienced Malpractice Attorney

Sometimes, surgeries and other serious medical procedures must happen. However, when they do, you deserve to know all the risks and all the rewards, and you deserve a doctor who will ensure your care is up to the appropriate standard. When you do not receive adequate care, you need an attorney who knows the ropes and how to navigate the potential pitfalls of a malpractice suit. The experienced San Jose medical malpractice attorneys at Corsiglia, McMahon & Allard, L.L.P. have years of experience and are ready, willing and able to put it to work for you. Contact our office today for a free consultation. We serve San Jose, the Bay Area, and the counties of Santa Clara, San Mateo, Alameda, Monterey and San Benito.

Client Reviews
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My experience with Attorney Brad Corsiglia during my recent medical malpractice case was nothing short of amazing given the very stressful circumstances. I was fortunate to find Brad highly recommended from a mutual contact and from the very beginning of the process, Brad was truly engaged and knowledgeable in understanding my case and providing input on what avenues were available to me. Michelle M.