Craig Rosenbaum | December 11, 2020 | Medical Malpractice
When it comes to medical procedures, many doctors, in an attempt to protect themselves from medical malpractice lawsuits, will make sure they receive express consent before operating on you. Express consent often means that a patient has signed waivers or other documentation clearly giving the doctor authority to perform a surgery or operation.
While express consent might sound like it would always make for a solid defense for a doctor, that isn’t always the case. For complex surgeries or procedures, a doctor might get written permission, but a patient could later argue they didn’t know what they were consenting to.
This is where informed consent comes in. With informed consent, a doctor tells his or her patient about the risks, benefits, and possible side effects of a medical procedure. Following the giving of information, the doctor then collects express written consent from the patient to perform the surgery or operation.
What About Implied Consent?
In some cases, a medical practitioner will move forward with what is known as implied consent. Implied consent is often claimed by doctors and nurses when a patient complies with a request or command. For example, if a nurse asks you to roll up your sleeve so she can give you a shot and you follow his or her instructions and roll up your sleeve, implied consent could be argued.
Another instance of implied consent would be if a doctor has to perform an additional surgical maneuver while in the middle of surgery in order to save your life or make the primary surgery more effective. Without having time to consult you and get express and/or informed consent, the doctor assumes you consent based on your willingness to have the original surgery.
However, in some cases, doctors will have you give express consent for additional surgeries should the need arise while he or she is performing the initial surgery.
Keys to Consent
Some individuals have found that it can be challenging to retain the information a doctor has related to them about a particular procedure. In order to be informed about any operation you might undergo, it is important you take and read all literature a doctor offers you.
You should also do your best to remember every time you gave implied consent during interactions with your doctor and keep detailed records of all the times you gave express consent. If you have a thorough paper trail and can show that something happened to you during surgery or after a procedure that was not explained to you, it can greatly impact your case should you pursue legal action later on.
An Attorney Can Help You Explore Your Legal Options
Knowing the difference between informed, express, and implied consent can help you protect your rights as a patient. If you signed waivers or other documents giving your express consent but later on feel you didn’t really understand what you were consenting to, you might have a medical malpractice claim you can bring against your medical provider.
However, medical malpractice matters are extremely complex and require the assistance of a qualified personal injury lawyer to be effectively litigated. A good lawyer will be able to examine your claim, investigate what was said and done (and what wasn’t said or done), and know the best path forward.
A skilled lawyer will advocate on your behalf and work to hold accountable the doctors or nurses responsible for the harm you suffered. Because New York law is designed to protect medical providers from frivolous lawsuits it takes the work of a seasoned lawyer to effectively articulate a legitimate claim.
While doctors and nurses can’t guarantee a positive outcome in all cases, they are humans too and prone to mistakes. If you have suffered harm because of the negligence of a medical provider, you deserve to be compensated for your injuries.