Medical procedures inherently involve some degree of risk. It is important for a doctor to fully inform a patient of the risks involved with a procedure so that the patient can weigh the risks and benefits and decide how to proceed. A patient trusts their doctor to provide them with all of the information they need before deciding to undergo a procedure, treatment, or test. This is known as informed consent.
What is Lack of Informed Consent?
New York Public Health Law section 2805-D defines a lack of informed consent as the failure of a medical professional to inform a patient of the reasonably foreseeable risks and benefits involved in a procedure that a reasonable medical professional would have disclosed under similar circumstances. Under the law, in order for there to be a valid claim for lack of informed consent, it must be established that a reasonably prudent person in the patient’s position would not have undergone the treatment if they had been fully informed. It must also be shown that this lack of informed consent was a proximate cause of the patient’s injury.
Informed consent must be obtained for any non-emergency tests or procedures that involve an invasion of the body. In the case of emergency treatment that is necessary to prevent death or serious injury to a patient, a doctor can use their best judgment if delaying treatment to get consent could lead to further injury.
Informed Consent and Medical Malpractice
If a medical professional performs a test or procedure without obtaining a patient’s informed consent, it may constitute medical malpractice if it resulted in injury to the patient. Not obtaining informed consent before a procedure is considered negligence. Patients who are injured due to risks in their treatment of which they were not made aware may have medical malpractice claims.
Having informed consent does not relieve a medical professional of their duty to safely and correctly perform a procedure. There can still be medical malpractice, even if a patient has been fully informed of the risks involved in a procedure.
Contact a Trusted Medical Malpractice Attorney
If you or someone you love has been injured due to a lack of informed consent, you should have your case evaluated by an experienced medical malpractice attorney. For over 50 years, Bonina & Bonina, P.C. have been helping New Yorkers injured by medical negligence. Contact us online or call us at 1-888-MEDLAW1 to schedule your free consultation. Home and hospital visits are available. Se habla español.