Medical Malpractice and Lack of Informed Consent in New Jersey
Medical malpractice occurs in a myriad of forms: during surgery, during childbirth, in hospitals and emergency rooms, with medication, in children, adults, and the elderly. The variety of actions (or lack thereof) that may constitute medical malpractice is similarly variable, including misdiagnosis, failure to diagnose, delayed diagnosis, failure to treat, prescription errors, and many more. Among the many forms of medical malpractice that cause undue harm to patients, one such form that is often overlooked is known as lack of “informed consent.” This issue is incredibly important, as it involves the rights and responsibilities of doctors and patients with regard to the information that must be provided in order for patients to make decisions about their medical treatment.
Informed consent is defined as the process by a which a doctor receives permission to perform a medical intervention on a patient. The three critical components that must be present in order for a person to provide valid informed consent are: disclosure, capacity, and voluntariness. The first component, disclosure, means that the patient must be provided with adequate information and understanding of the facts, implications, and potential risks of a given procedure, medication, test, or other intervention. In essence, your doctor must ensure that you understand what the treatment involves, what the results may be, and what may go wrong.
The second essential component of informed consent is known as “capacity.” This refers to the patient’s ability to understand and make decisions with regard to his or her health. Some of the circumstances that may undermine a patient’s capacity include: intellectual disabilities, extreme stress or post-traumatic stress disorder, intoxication or being under the influence of mind-altering substances, severe sleep deprivation, mental illness, and dementia. The last crucial component of informed consent is “voluntariness,” which is rather self-explanatory. Essentially, this means that the patient must not be coerced into providing his or her consent to a medical procedure.
So, how does a doctor or hospital obtain informed consent? Generally, informed consent is obtained through a document that outlines a procedure and its risks, and requires the patient to sign. However, doctors must also ensure that their patients are completely informed and understand the risks associated with a given procedure before moving forward. If a doctor does not fully explain a procedure to a patient, or fails to obtain informed consent, and the patient suffers harm, the patient may have grounds to pursue a medical malpractice claim.
In order to fulfill the obligation of informed consent, a patient should understand the following:
- The medical condition being treated
- The purpose of the procedure or medical intervention
- The risks of the procedure or medical intervention
- The chances for success of the proposed intervention
- The estimated time for recovery
- The name of the treating physician and his or her qualifications
- The estimated cost of the procedure or intervention and the likelihood that it will be covered, in whole or in part, by the patient’s health insurance provider.
Notably, there are certain circumstances during which informed consent is not required, such as emergency situations. For instance, if you arrive in an emergency room and your life is currently in jeopardy, the treating physician is not required to obtain informed consent before saving your life. In other cases, such as those involving children or patients who are incapacitated (i.e. unconscious or in a coma), a medical guardian ad litem may be required to provide informed consent on the patient’s behalf.
As a patient, it is essential to understand your rights, as well as the obligations of the medical professionals who are providing your treatment. If you suffered harm and you suspect that medical negligence may have contributed to your injuries, contact Fronzuto Law Group at 973-435-4551. Our highly knowledgeable medical malpractice attorneys are pleased to provide consultations free of charge.