Medical Malpractice and Informed ConsentMost medical procedures involve some risk, and it is a doctor’s responsibility to fully advise a patient of these risks so that a patient can make an informed decision about whether or not to undergo a treatment, procedure, or test. To make the most educated decision possible, patients trust medical professionals to provide them with the most accurate and relevant information. This process is known as informed consent.

Lack of Informed Consent

NY Public Health Law section 2805-D essentially defines lack of informed consent as the failure of the person providing medical treatment to disclose to the patient the reasonably foreseeable risks and benefits involved in a procedure that a reasonable medical professional would have disclosed under similar circumstances. The information must be presented in a manner that would allow a patient to make a knowledgeable decision. There is also a lack of informed consent if a medical professional fails to disclose alternative treatments available.
Informed consent must be obtained for non-emergency treatment and diagnostic procedures involving an invasion of the body. If emergency treatment is necessary to prevent death or serious harm to a patient, a doctor can use his or her best judgment if delaying treatment to obtain consent might cause further injury.
Patients are typically required to sign a consent form before any procedure is performed. This form should advise the patient of any risks involved in the procedure. Informed consent, however, does not relieve a doctor of his or her duty to conform to accepted medical practices when performing a procedure.

Proving a Lack of Informed Consent

Medical professionals who fail to obtain informed consent before performing a procedure on a patient can be liable for medical malpractice. To prove that a patient did not give informed consent it must be shown that a reasonable person would not have gone forward with the treatment or procedure if the patient had been fully informed of the risks, benefits, and alternative treatment options. It must also be shown that the lack of informed consent caused an injury to the patient.
If you’ve been injured as a result of medical malpractice, you should have an attorney evaluate your case. At Bonina & Bonina, P.C., we have over 50 years of experience helping New Yorkers who’ve been injured by medical malpractice. Contact us online or call us at 1-888-MED-LAW1 to schedule your free consultation. Home and hospital visits available. Se habla espaňol.