Can I Sue If My Doctor Didn’t Tell Me About a Specific Risk?
Anyone who has undergone a surgery or a medical procedure knows that there is usually a detailed list of potential complications that could occur. Depending on the nature of the procedure, the risks might be relatively minor or quite serious.
The law requires doctors to inform their patients about the risks involved in any surgery or invasive medical procedure they propose. In both law and medicine, this information is referred to as “informed consent.” The idea is that doctors have a duty to let patients know all the risks before performing a surgery, procedure or any kind of treatment plan.
If you believe your doctor withheld a risk from you, and you were injured as a result of a doctor’s negligence, you may be able to file a medical malpractice claim. It’s important to talk to a New York City medical malpractice lawyer about your case, as there are strict time limits for filing a claim.
Informed Consent Explained
The vast majority of medical treatments and surgical procedures come with some level of risk, even if some of the risks are unlikely to occur. Regardless of how minimal the risk, however, doctors are required to tell patients about the possible complications involved in any kind of treatment.
In fact, most doctors and hospitals require patients to sign a form that deals with risks and complications. Some forms list a variety of possible risks, while others merely state in general language that the patient has been advised that there are risks to the procedure. However, it’s important to point out that just because a patient signs a consent form doesn’t necessarily mean that they understood the risks and gave their informed consent to the procedure. If a patient believes their doctor failed to inform them of the risks of a procedure, and the patient sustained an injury as a result, the patient may be able to pursue a medical malpractice claim.
What Kinds of Risks Is a Doctor Required to Disclose?
Doctors are required to inform their patients of important risks. In a medical malpractice case, the question of whether the doctor had a duty to disclose typically revolves around two questions: whether other doctors in a similar situation would have considered the risk important enough to disclose, and whether the patient would have gone forward with the procedure if they knew about the risk.
In most if not all cases, the plaintiff’s attorney will need to obtain an expert witness to provide testimony stating that most doctors under similar circumstances would have deemed a risk important enough to disclose, and that the failure to do so was a departure from accepted standards of practice.
When Are Doctors Not Required to Disclose a Risk?
There are some exceptions to the general rule that informed consent is required in all medical procedures.
Perhaps the most common exception to the rule is an emergency situation. When a doctor is working quickly to save someone’s life in an emergency, the physician may not be able to obtain the patient’s informed consent, or that of a family member.
In other cases, a doctor may forego informed consent if informing a patient with serious anxiety of a risk could cause the patient to refuse life-saving treatment. However, in this extraordinary type of case, the doctor must be able to explain why disclosing a risk could have caused more harm to the patient than withholding it.
Lack of Informed Consent for Additional Procedures
In some cases, a doctor may recognize an additional problem during a surgery or medical procedure that was not on the consent form. For example, if a doctor is operating on a patient to repair a fractured bone and sees serious nerve damage, the doctor may make the decision to repair the nerve damage, if possible, during the bone surgery.
In this situation, the doctor might have a good reason for going ahead with the nerve damage repair despite not having the patient’s informed consent for the specific additional procedure. Many doctors might explain that requiring the patient to undergo an additional surgery poses a greater risk than simply fixing both problems at the same time. Typically, consent forms deal with this situation by indicating that the patient consents to such additional procedures as the surgeon deems necessary during the operation.
However, assuming the patient suffers even greater damage due to the doctor’s unexpected procedure, this could be a case that rises to the level of a medical malpractice claim. This is particularly true if the patient can legitimately claim that they would have sought alternative treatment if they had been fully informed of the risks.
Given this example, it’s easy to see how medical malpractice cases can be quite challenging and complex. This is why it’s important for patients who have suffered an injury due to a doctor’s mistake to speak to a medical malpractice lawyer as soon as possible.
Jonathan C. Reiter is a leading NYC attorney who handles medical malpractice, doctor errors, wrongful death, aviation accidents, airline injuries & death, truck accidents, MTA, taxi accidents, bus accidents, and construction cases.
Prior results cannot and do not guarantee or predict a similar outcome with respect to any future case. Recoveries always depend upon the facts and circumstances of each case, the injuries suffered, damages incurred, and the responsibility of those involved.