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Informed Consent in Cases of Medical Malpractice

April 5, 2021Medical Malpractice

There is some degree of risk in every medical procedure or drug prescribed, and it is a doctor’s duty to make patients aware of them prior to treatment whenever possible. When a patient affirms that he or she understands the risks and still wishes to undergo the procedure or take the medication, this is known as “informed consent.” Unless it is an emergency, if a doctor acts without informed consent, it is considered a serious medical malpractice violation. 

The Definition of Informed Consent

Providers and healthcare institutions in Missouri are legally required to obtain informed consent from patients before administering tests, procedures, and other therapeutic interventions and before allowing participation in research studies.

This consent can be truly “informed” only after the patient understands: 

  • Their diagnosis
  • The treatment the doctor wants to provide
  • The doctor’s rationale for providing the treatment
  • The procedure’s benefits and risks
  • The benefits and risks of not undergoing the procedure
  • Alternative options along with their risks and benefits

The process of obtaining informed consent is typically a document or form signed by the patient, stating they understand all of the above information and permit the healthcare provider to proceed. This waiver also typically releases facilities and medical professionals from liability if a patient suffers an injury or dies during a procedure or from the treatment. 

Who Can Give Informed Consent?

The legal requirements for informed consent are typically satisfied if the patient has decision-making capacity and the patient signs a consent form or document. According to Missouri Laws § 431.061, the following individuals are “authorized and empowered to consent, either orally or otherwise, to any surgical, medical, or other treatment or procedures, including immunizations, not prohibited by law:”

  • Adults who are 18 and older;
  • Legal parents of minor children;
  • Minors who have been lawfully married;
  • Minor parents or legal custodians of a child can decide for themselves, their child, and any child in their legal custody;
  • Minors, but only regarding:
    • Pregnancy (excluding abortions);
    • Venereal diseases;
    • Drugs or substance abuse;
  • Adults standing in loco parentis in cases of emergency (persons standing in place of the parents, such as a school official)
  • Any guardian of the person for his ward;
  • Relative caregivers of minor children 

Patients and the above-listed individuals must provide their consent out of their own free will. A physician cannot pressure or force a patient or guardian to consent to treatment. 

Filing a Medical Malpractice Lawsuit Over Informed Consent

It is illegal for a physician to perform procedures on patients without their informed consent unless it is an emergency situation. If a doctor fails to obtain informed consent or gets it through force, trickery, or coercion, you have the grounds to file a medical malpractice lawsuit if you were injured by the procedure or treatment. 

Even if you signed a waiver that explained the risks and benefits of the procedure or treatment, you have the right to file a medical malpractice lawsuit if any of the following circumstances apply to your case: 

  • The waiver failed to inform you about a known complication, and you suffered from that complication during the procedure.
  • The waiver contained ambiguous language, and as a result, you did not adequately comprehend the risks involved. 
  • The waiver did not accurately describe the risks or included misinformation about the complications you suffered. 
  • The nature of the physician’s negligence was preventable.
  • The negligent act or omission rises to the level of gross negligence.

If you believe you are a victim of medical malpractice, speak to a St. Louis Medical Malpractice Lawyer as soon as possible. Our team at Goldblatt + Singer will examine the circumstances surrounding your injury and potential lack of informed consent. Call (314) 888-1000 or message us online so we may begin with your free case consultation. 

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