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Medical and Dental Malpractice - How Do You Give Informed Consent?


     By JD.MD, Inc. Medical Expert Witnesses & Dental Expert Witnesses Since 1978

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Before you decide whether you have a legitimate complaint for lack of informed consent, let us look at some of the ways you can consent to a doctor’s treatment and some of the ways a doctor can treat a patient without that person’s formal consent.
Implied Consent

This is consent implied by your actions. The very act of walking into a doctor’s office, or a hospital ER, or voluntarily submitting to treatment is a valid consent. If you go into a doctor’s office with a boil on your neck and do not object when he lances it, you have consented. A Mississippi mother sued her local school board, because her child developed a severe reaction to an inoculation that was given to the child at the school clinic. She complained the shot had been given without her consent. The court held that she had given her implied consent by allowing the child to be sent to the clinic.

Verbal Consent

Any time you solicit a doctor’s opinion, advice, or treatment you have consented. It does not matter whether it is in his office, or a hospital, or on a street corner. This applies to simple everyday treatments and office visits, which are easily understood by the average person. It does not cover more complicated procedures, especially surgery.

A South Carolina woman requested a dermatologist to remove a blemish from her face by freezing it with carbon dioxide. The doctor warned her that it might leave a permanent depigmentation (white spot) and even with that knowledge, she agreed. It did and she sued the doctor for medical malpractice, because she had not signed a consent. The court held that her verbal consent was binding, because it was a simple procedure which anyone could understand.

Written Consent

Most medical malpractice lawsuits for lack of informed consent involve written consents. Theoretically, a doctor can do the most complicated and dangerous treatment with only your verbal consent. However, no doctor in his right mind would do such a thing. If the treatment is complicated, dangerous, or involves anesthesia and surgery, a prudent doctor or hospital will obtain a written consent from the patient. This type of consent is valid and binding on the patient, provided it is Fully Informed, meaning that you understood what you are agreeing to.

Consent by Proxy

This is when someone else consents to your treatment on your behalf. The obvious case is a parent consenting to surgery on a child. What if your father is unconscious from a fractured skull and needs immediate brain surgery? Can you give a legally-binding consent? No. In that situation, the doctors have to make the decision and do what they assume the patient would have consented to, if able. Only a spouse, legal guardian, or healthcare power of attorney of a patient can give a proxy consent for someone else.

That does two things. First, it means the doctors cannot pass the buck to you. They are the experts. They are responsible for the technical decisions and must do what they know is best. Second, they cannot do anything to an unconscious patient they know the patient would not have agreed to. For example, they cannot give a blood transfusion to a Jehovah’s Witness or do a hysterectomy on a young, unmarried female.

A teenage girl, who was visiting her aunt in Boston, decided to go to a doctor and have warts removed from her face. Both she and her aunt signed the consent for treatment, which scarred the girl’s face. She sued the doctor for medical malpractice and won. The court held that she could not consent, because she was underage; the aunt was not her legal guardian, and there was no emergency. Therefore, the consent was not legally binding on the girl or her parents.

However, this type of complaint may be difficult to win. It is based on the traditional legal theory that a minor cannot enter into a contract. In recent years, that rule has been seriously undermined by laws permitting teenagers to undergo abortions without their parents knowledge or consent. While the law still requires minors to obtain parental consent for other forms of treatment, the courts are more reluctant to enforce the rule. It does not make sense to permit a doctor to do an operation like an abortion, with only the teenager’s consent, but penalize him for doing trivial procedures, like removing a wart, with the same consent.

The child of two Jehovah’s Witnesses was admitted to a hospital in Maine following an auto accident. A blood transfusion was urgently required to save the child’s life, but the parents refused to consent on religious grounds. No one else could do it. So, the hospital administrator went to a local judge, who appointed the administrator and the doctor in charge of the case as temporary legal guardians. That gave them legal authority to order the transfusions, and the child’s life was saved. When he was out of danger, the judge returned the child to the custody of its parents. How did the parents feel when it was all over? They were happy and grateful their child’s life had been saved without having to violate their religious beliefs.

The Rule Is: There are a number of ways you can consent to treatment for yourself or a member of your family. However, the important points to remember are:

1. A consent only covers your specific illness and the immediate treatment agreed upon between you and the doctor. It does not cover any other disease condition the doctor may find, unless it says so in the consent form.

2. It is not transferable. It only applies to the doctor and the patient named in the consent. If you consent to surgery by one doctor, they cannot switch doctors. That is abandonment. If you consent to have one child’s tonsils out, they cannot do the other child. That is a battery.

3. Consent cannot be given by a family member, even if the patient is unconscious, unless the family member is a spouse, the legal guardian, or has healthcare power of attorney. If the patient cannot consent for some reason, the doctors will obtain a consent from the closest relative available. But, it is not legally binding on the patient. In that situation, the doctors must make the decisions themselves.

ABOUT THE AUTHOR: JD.MD, Inc.
JD.MD, Inc., has provided case evaluations, expert witnesses, and support services to attorneys throughout the United States and Canada since 1978. JD.MD has experts from all Medical and Dental specialties, all geographic areas, and our experts are available for consultation and testimony in cases they deem to be meritorious.

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While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.