Chicago Informed Consent Lawyers
Every day, from when you rise from bed to when you go to sleep, you make thousands of conscious decisions. You weigh the choices presented to you at every turn and decide which would be the best choices for you to make. Should you cross the street in heavy traffic? Which shoes should you wear when the weather is bad? Should you hit the gas or the brakes as the traffic light turns yellow? Should you offer directions to a stranger? Should you wear eye protection while using a drill?
Everyone Wants to Avoid Pain and Illness
Every decision you make has a possible repercussion or complication. – And while no one can ever predict the future or make a decision that they know will produce an exact result 100% of the time, every person wants to make choices that at least increase the chances of a positive and happy result. That is because humans have a strong sense of self-preservation. They want to live. They want to thrive. They want to avoid sadness and illness. From the very first moment that a newborn baby draws his or her first breath, every human wants to survive. Babies are even born with certain reflexes that are intended to increase their chances of survival and decrease their chances of injury, such as:
- The Moro Reflex: When a baby suddenly startles as a result of a loud noise or a feeling that they are falling, this reflex is an attempt to protect themselves from harm.
- The Suck Reflex: When a baby sucks on a nipple, this reflex is an attempt to stay nourished and alive.
- Babinski Reflex: When a baby’s foot is stroked and the foot turns in while the toes curl up, this is intended to protect the baby from falling.
- The Root Reflex: When a baby’s cheek is stroked and the baby turns its head towards the source of the touch, this is intended to help the baby find food.
So no one can deny that each person has the innate desire and right to control their own destiny (or at least try to control their own future health and well-being) as best that they can. This right should never be interfered with or taken away.
Who Should Make Your Important Decisions?
Some choices are much less important than others. Whether you choose Pepsi or Coca Cola. Whether you wear a red or a blue shirt. Whether you cheer for the Chicago Bears or the Green Bay Packers (although not everyone would agree). But other choices may mean the difference between health and sickness or even between life and death. So although you may be perfectly fine with your waiter choosing which soft drink to bring or with allowing your significant other to choose which color shirt for you to wear, other important choices definitely demand your personal input, because too much hangs in the balance. This brings us to the question of making important medical decisions.
We Put Our Trust in Doctors
So much is at stake whenever medical health care choices are made. We all know that doctors and surgeons generally have much more training than we do and that they have taken an oath not only to “do no harm”, but to help us to the very best of their abilities. This is a perception not lost on medical professionals and as a result, there are certainly times when a doctor may, in effect, take advantage of the doctor-patient relationship and make clear that they “know what they’re talking about” or that they “know what’s best for the patient”. It is therefore not surprising that many patients choose to allow doctors to make important choices on their behalf. “Do whatever you think is best”. “I trust you”. These are comments sometimes spoken in a medical setting by many, including elderly, overwhelmed or uneducated patients. But should a patient ever put their blind trust in a physician, nurse, hospital or surgeon? The answer is a resounding “NO”.
What is Informed Consent?
In everyday life, people want to be as fully informed as possible before making even minor decisions. If you wanted to order a sandwich in a restaurant, what if the waiter said “trust me. I’m a food professional. I’ll make you a sandwich you’ll like”. Instead, you’d probably at least rather choose what type of sandwich it would be, because if you blindly followed his advice, you may not like what you get. In a medical setting, being fully informed before you consent is obviously much, much more important.
“Informed consent” means that a doctor must fully explain to a patient all of the risks, potential benefits, and alternatives available when determining whether to perform any type of medical procedure, surgery, or any course of treatment at all. Once these matter have been fully discussed and the patient has been fully “informed”, the doctor will often then obtain from the patient a signed form that acknowledges the patient’s “consent”. Only then should the doctor proceed with the surgery, medication or other medical procedure. To do otherwise would be considered medical malpractice. When a doctor is discussing these matters with the patient, the following should occur:
- It should be the doctor who takes part in this discussion, rather than another medical representative such as a nurse, a medical device manufacturer’s representative, or hospital administrator. The doctor is always the best choice when seeking a patient’s informed consent.
- The doctor or surgeon should fully discuss the present medical diagnosis so that the patient is fully informed of his or her existing medical condition.
- The purpose of the medical procedure or surgery must be explained to fully inform the patient as to exactly why it is being recommended or offered in the first place.
- The specifics of the surgery, procedure or course of medical treatment must be explained. Is it outpatient? Inpatient? General or local anesthetic? Laparoscopic, minimally invasive surgery or a traditional surgical procedure? Drug therapy? Chemotherapy?
- The medical benefits of a procedure must be discussed, along with the likelihood of its success.
- The possible risks associated with a procedure must be discussed, along with the likelihood of failure and adverse consequences that may arise as a result of that failure.
- Possible alternative treatments or medical procedures that are available must be discussed, as well as the risks and benefits of these alternatives. In some circumstances, the physician should even talk about the availability of certain experimental procedures, treatments or holistic approaches. These alternatives should be discussed regardless of whether the doctor or hospital believes that the patient’s insurance will fully cover the costs or whether the patient is financially able to pay for such a procedure or medical treatments.
- The patient should be allowed the opportunity to ask follow up questions of the doctor or surgeon, as well an opportunity to think about and decide which choice they wish to make.
- The patient is entitled to have his or her questions answered regarding the doctor’s experience, education, how many times the doctor has performed this type of medical treatment or procedure in the past, the cost of the treatment, and the necessity of follow up treatment.
Your continued health and well-being are of the utmost importance. Although laws vary from state to state setting forth what a doctor must disclose or discuss to obtain a patient’s “informed consent”, what it generally requires is a full discussion that allows the patient to make the smartest and most well-reasoned decision possible on his or her own behalf. When the doctor fails to hold up his or her end of this bargain, medical malpractice may have occurred.
What is Informed Refusal?
In addition to fully informing patients of all the benefits, risks, and alternatives of a proposed surgery or treatment, part of any “informed consent” is to discuss the benefits and risks of electing to take no medical action at all. This is sometimes referred to as “informed refusal”. It means that in those circumstances when the doctor has suggested a medical course of action and the client has declined to move forward, the doctor needs to fully inform the patient of the potential risks involved.
So it is not enough for the doctor to fully inform a patient of the risks and benefits of the proposed treatment, because the doctor must tell the patient what the potential consequences of their refusal may be as well. In one example, an obstetrician/gynecologist may suggest that a woman undergo an amniocentesis and may detail all the benefits and dangers of the procedure. Although this may satisfy the requirements for an “informed consent”, if the patient declines the test, the doctrine of “informed refusal” requires the doctor to inform the client of the risks of not performing the test. So for instance, in just such a circumstance when the mother later gives birth to a child with a birth defect injury or genetic malformation, the mother may sue for medical malpractice, alleging that she would have taken the test if she had been informed of the risks of failing to do so.
Similarly, an oby/gyn who recommended a “Pap smear / Pap test” to a patient may have satisfied the requirements for “informed consent” if all the dangers of undergoing the test were disclosed. But if a client rejects the test and later dies of cervical cancer, a medical malpractice lawsuit may follow if it cannot be shown by the doctor that he or she explained the dangers of not taking the test at all.
When is Informed Consent Not Required?
Not absolutely everything that a doctor does will require an informed consent. Some of the circumstances when it may not be necessary include:
- Basic Procedures: During an exam, a doctor will typically use a stethoscope to listen to the patient’s heartbeat and a device to view inside the patient’s ear (known as an otoscope or auriscope). Typically, it is unnecessary and rare for a doctor to have any type of extended conversation regarding the risks and benefits of using such devices. But just because an “informed consent” is not normally necessary under such standard circumstances does not mean that a patient cannot later sue for medical malpractice in the event of doctor error. For instance, if a doctor were to puncture an eardrum while using such a device, a lawsuit would still likely be appropriate.
- Emergency Situations: In emergency situations, when the patient is unconscious, unable to communicate, or when there simply is not enough time to fully inform the patient before serious long-term injury or death occurs, the lack of such “informed consent” may not be required.
- Emotionally Frail Patients: In some circumstances, the doctor may be concerned that the procedure is very important or the failure to perform it may be life threatening, yet the patient is emotional fragile or has extreme anxiety. The doctor may be concerned that if full information is given such a patient, they may unreasonably refuse to take part in an otherwise critical procedure. Whether the failure to obtain informed consent under these circumstances is allowable or constitutes medical malpractice is a fine line, and varies from case to case.
Although informed consent is not a necessity for every medical event (as discussed above), the surgeon, hospital, or other medical provider is not automatically insulated from a possible lawsuit for medical malpractice if informed consent isn’t obtained. So even in an emergency situation, when there is not time for informed consent, a doctor who fails to meet the standard of care and commits a medical error may still be the subject of a malpractice lawsuit.
How is Informed Consent Obtained from Minors and Incompetent Persons?
In a typical situation with an adult patient, obtaining “informed consent” is a straightforward concept. All adults are presumed to be competent to consent to medical procedures, unless there is some other indication of mental impairment, incapacity, or disability. On the other hand, children are automatically presumed to be incompetent to make such “informed consent” decisions. Whether the patient is a child or the patient is an adult who is presumed incompetent, the procedure for consent is therefore less straightforward. Unless the surgery or procedure falls under one of the exceptions for obtaining “informed consent” detailed above, this consent must be obtained elsewhere, and that generally is from a guardian or a parent. In circumstances where the patient is incompetent, but has no guardian or parent, a legal proceeding to designate a guardian will usually be necessary before proceeding with the intended medical course of treatment.
The “Informed Consent” Form
Known as an “informed consent form” or “release form”, this is a document created by doctors, surgeons and hospitals to help limit their medical malpractice liability. The true essence of informed consent does not actually require a physical written form. It merely requires the doctor, surgeon or other medical provider to explain all of the required positives and negatives of the procedure so that the patient’s decision is “informed” or intelligently made. But as verbal interactions between doctor and patient are virtually never recorded by audio or video, this is a cause of concern for doctors. They fear that even if they do explain all that must be explained, a patient may later sue them for medical malpractice and claim that the doctor committed an error by failing to fully inform them.
Enter the written informed consent form. It is typically a pre-printed document with some blanks spaces for the medical provider to fill in specific personal information about the patient. This form will often describe the particular surgery and then list a great many complications that may possibly result from the surgical or medical office procedure. Even when describing a minor outpatient procedure, the form may list dozens of possible complications, including serious, permanent, long-term injuries and the risk of death. Take for example for a release form for a standard procedure like arthroscopic knee surgery. Such a form might list complications which include torn blood vessels, torn knee ligaments, broken surgical instruments, stretching of knee ligaments, reflex sympathetic dystrophy, blood clots, postoperative infection or bleeding, compartment syndrome and persistent swelling.
Can a Release Form Protect the Doctor in a Medical Malpractice Lawsuit?
In the example of the knee surgery release form described above, the intention of the doctor or hospital is to have the patient sign a form that describes every possible complication and adequately describes the procedure as well. In the event that the patient dies or is injured as a result of doctor error and a medical malpractice lawsuit is later filed against the medical provider, the doctor’s insurance company will produce the consent form. They will assert that the patient did in fact know of the particular risk and should not be allowed to sue the medical provider. Except in cases where the patient was pressured to sign the form, is unable to read, has dementia, is incompetent, is intoxicated, or is under the influence of drugs or medication, adults are assumed to know what they are reading and signing. As such, a thorough and detailed signed release form may, in fact, bar an injured patient or a deceased patient’s family from pursuing a medical malpractice case. But a release form is not always a perfect shield against a medical malpractice lawsuit.
Does a Signed Informed Consent Form Mean that a Medical Malpractice Case Cannot be Filed?
Absolutely not! Many negligence lawsuits have been filed and many millions have been recovered despite the fact that the patient signed a release. All releases are not equal! It is common for a surgical procedure to have many typical possible complications, as well as many rare and unusual complications. Although it isn’t necessary for a release form to cover absolutely every possible complication, a medical malpractice suit may follow in the event that a complication not listed occurs. Similarly, there are situations when the complication may have been listed, but the release form may have misstated the likelihood of the complication occurring. For instance, if the release form states that the risk of paralysis in 5%, but the relevant medical literature actually considers the risk to be 10%, this may be a legitimate cause to sue the doctor, as the patient may have been unwilling to take part in the surgery if he or she had been fully informed of the risk. So even if you or a loved one signed a release form, do not assume that you cannot be helped.
What if the Doctor Contradicts the Release Form?
Another situation that may arise giving way to a med mal lawsuit is when the surgeon, doctor, nurse of other medical provider contradicts or otherwise downplays the information on the release form. What if you went to buy a car and the salesperson clearly told you one price, but then had you sign a contract that had another price on it? That would be called “bait and switch”, and if you were able to convince a judge that it happened that way, you would likely win the lawsuit against the dealership. In the same way, sometimes a doctor will explain the procedure in a different way than described in the release. If the release indicated that blood clots were a serious surgical risk, but the surgeon told you in his office “Oh, don’t worry about that so much. I’ve been doing this for 30 years and I’ve never seen that happen”, that would likely be considered a contradiction by a court of law that could act to undo the legal protection of the medical release.
Of course, it is sometimes easier said than done to prove such a thing. Doctors and surgeons do not typically record their conversations with patients for precisely this reason, and although there are situations when a patient records the conversation, these circumstances are few and far between. But that does not at all mean that a judge will not believe a client when he or she describes such an office discussion and find in the client’s favor. Many times however, a patient may have brought a friend, relative or loved one to the doctor’s office and this person may be able to corroborate that the doctor or surgeon contradicted or downplayed the release. Such a person may prove to be a very valuable witness in a medical malpractice case.
Why Don’t Doctors Just Give Full Disclosure in the First Place?
In a study in which researchers recorded outpatient office conversations between doctors and patients and then evaluated the results, only 9% of these conversations were determined to include all of the necessary elements for making an “informed” decision. Studies have also shown that the reading level of most informed consent forms is just too high for the typical patient and that the vast majority of patients are just not able to understand or recall correctly what was discussed with the surgeon or doctor, let alone what is written on a long written release form. So why is the quality of the information often so seriously lacking?
Unfortunately, it often comes down to money. The medical profession is a business in the 21st Century. Greater profits and more patients coming through the door is the name of the game. Millions and billions of medical dollars change hands on a daily basis. Where does that leave the patient? Sometimes the victim of injury or death. That is because time is money. The longer that a doctor spends describing all of the pros, cons, complications, and alternative treatments to a patient, the less time there is in the day for making money and seeing other patients. Who among us has not shown up on time for their doctor’s appointment only to be herded into a small room to wait and wait for the doctor? And then when the doctor eventually shows, you are rushed through the appointment? Time is money.
And what is the impetus for a doctor to describe all of the possible complications to a patient? When that occurs, the patient will have more questions and concerns, leading to an even longer appointment. Time is money. And what if the patient fully understands all of the risks and decides not to perform the procedure at all? No money. No profit. Sometimes, it is better to have the patient sign a release form that is often difficult to understand but may protect the doctor later in the event of a medical malpractice lawsuit if a negligent injury or death occurs. Is this what drives all doctors? Absolutely not. But the absolute fact that it drives some is a cause for alarm.
Contact our Legal Team Even When a Release Form was Signed
Informed consent/release forms were created for doctors and to protect doctors. They were not created to protect you. But although their intention is to stop lawsuits and to insulate medical providers from possible medical malpractice lawsuits, there are ways that experienced and knowledgeable Chicago doctor malpractice lawyers, such as the legal team at Mitchell S. Sexner & Associates LLC, can help you. Millions and millions of dollars have been recovered for our clients and families, even when such forms were signed. Call us 24 hours a day for quick, professional and free advice about how to best proceed. Our toll free phone number is (800) 996-4824. Call now.