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Issues With Consent to Treatment

TreatmentBefore doctors and hospitals can begin to treat a patient, they must obtain consent to do so, because many forms of treatment might actually constitute medical malpractice or even civil assault if the person in question does not permit themselves to be touched. However, in recent years, many questions have been raised about the efficacy of consent requests in their current form, especially in the emergency room. Depending on the situation, it can be difficult to know if a patient’s consent has truly been voluntarily given.

The Requirement of Informed Consent

A patient must do more than merely consent to be treated; they must receive enough information to be informed beforehand, as uninformed consent still has an element of involuntariness about it. While not every potential complication must be planned for, every risk with statistical significance must be pointed out to the patient before consent can truly be called informed. Sometimes, this simply does not occur, most often in the emergency room.

Consent forms are used so a hospital has a record of a patient’s consent, but at the same time, they can easily be the agent that lands the medical provider in the proverbial hot water.If a statistically significant complication is left off the form, the patient’s informed consent has not been obtained, and this can constitute malpractice. It can even amount to malpractice if the condition is listed, but the odds of its occurrence are misstated. Information must be correct to the best of the provider’s knowledge, even such relatively insignificant statistics.

Do Consent Forms Bar Suits?

While most medical providers clearly intend that consent forms bar most malpractice suits, in practice, there are some actions whose liability cannot be signed away. For example, it is not possible for a patient to assume the risk of a doctor’s negligence - to allow that would be against public policy, because then a doctor could conceivably get away with egregious harm scot-free. If you are able to prove that a doctor’s conduct was negligent, you are entitled to seek compensation, though some health care plans and hospitals require that you do so via arbitration, instead of in court.

Some suits, however, are barred as long as three things can be proven: (1) that the patient was competent to sign the form; (2) that the patient was in no way pressured to sign the form (for example, being threatened with care being denied if they did not sign); and (3) the form is complete, meaning that the procedure or care that is determined to be necessary is explained in sufficient detail, with the risks sufficiently clarified. Indeed, California state law mandates that all three criteria be met before a doctor can be protected from suit, though not every state’s law does.

Seek Experienced Assistance

Whether or not informed consent has been obtained can be difficult to determine. Having a knowledgeable attorney on your side can make a difference in many cases. The zealous San Jose medical malpractice attorneys at Corsiglia, McMahon & Allard, L.L.P. understand that these issues can be confusing and intimidating, and are happy to help clarify your situation for you. Call us today to set up a free consultation. We serve San Jose, the Bay Area, and Santa Clara, San Benito, San Mateo, Alameda and Monterey Counties.

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Client Reviews
★★★★★
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.