California Medical Malpractice
A commonly litigated issue in medical malpractice
is that of consent. Generally, courts and lawyers look at two elements
germane this issue, although again, you are cautioned that this discussion
is general, and advised to consult with a professional in your state as
to that state's requirements.
First, did the patient actually consent to undergo
a particular procedure; and secondly, was the patient sufficiently apprised
of the reasons for the procedure, the risks inherent therein, the nature
of the procedure, such as to enable him/her to give an informed consent
to the procedure itself.
For example, in many states, if a doctor operates
on a patient without the patient's consent, that doctor may be liable
for a battery. A writing may or may not be required, depending upon the
laws of the particular state at issue.
In many states, consent may be given orally, or
even implied by ones conscious submission to a procedure. [Consent may
also be implied under circumstances of emergency, or where the patient
is unconscious, a minor, or incapable of consenting to treatment.]
Generally, a physician may not extend the scope
of an operation without the consent of the patient. Likewise, the traditional
rule is that a physician is not permitted to perform an operation in the
first place without proper authorization . However, the law is far from
universal in each state, and there are numerous exceptions to this rule.
This is especially so, in emergency and life endangering conditions .
Moreover, in certain jurisdictions where the consent
is framed in terms of achievement of a specific result, as opposed to
defining a particularized procedure itself, the physician may be authorized
to do what is reasonably necessary and appropriate to the achievement
of that result.
Even where the patient may have "consented"
to the procedure, however, that consent must necessarily be "informed"
This means that not only the patient must have been made aware of the
need for the medical treatment, but that the patient was also advised
of all risks inherent in the undertaking. The major justification for
the informed consent doctrine is the patient's right of self-determination,
that is, that the patient has the paramount interest and freedom in deciding
what shall be done with his person.
Consent/informed consent cases
are often times
difficult cases to prove. It is not uncommon for the patient to recall
being told one thing, while the physician has a different recollection
altogether. Where the medical records do not chart or document fully that
consent was obtained, it becomes a credibility battle for the jury to
Additionally, the plaintiff still must prove a
causative link between the failure to provide informed consent, and the
untoward result. In other words, the plaintiff must establish that s/he
would not have undergone the procedure which caused him/her the harm had
s/he known all of the risks involved. If other satisfactory procedures
with less risks did not exist, this burden often times becomes insurmountable
for the damaged plaintiff.
If you or someone you know has been injured
as the result of medical malpractice or professional negligence,
you need the assistance of The Scarlett Law Group.
today to speak with a California Personal Injury Attorney.