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Lack of Informed Consent

Medical malpractice is another subset of personal injury, in which a doctor or healthcare facility’s error can result in the severe injury or death of a patient. Medical malpractice is not always writing the wrong prescription or operating on the wrong limb. Medical malpractice can also take place when a healthcare professional or healthcare facility fails to provide the procedure’s details or risks and side effects to the patient, and thus fails to obtain the patient’s informed consent so that he or she can make an informed decision on their procedure in advance.

Without knowing exactly what the procedure will look like or the side effects that may result, the patient may end up misunderstanding the process and end up suffering an injury or unwanted long-term side effect that they were wholly unprepared for. If you believe your healthcare professional’s lack of informed consent resulted in your severe injury, you need to retain legal counsel as soon as possible.

Lack of Informed Consent Attorney in Miami, FL

Consent is always necessary, especially in the healthcare system where decisions are made based on medical necessity. With overcrowded hospitals and clinics, the doctor may have decided to skip on explaining all the risk and effects of your procedure, and you are left to face the aftermath of that procedure on your own.

Our attorneys at Abrams Justice Trial Attorneys know you may be filled with fear now and overwhelmed by what has just happened to you. However, you are not alone. Meet with one of our attorneys to file a lawsuit against lack of informed consent.

We work with clients in the cities of Miami, Homestead, Doral, Coral Gables, Cutler Bay, Coral Gardens, Miami Gardens, Hialeah, and more. Call (305) 709-0880 to schedule a consultation or fill out a free case review form at the bottom of the page.

Overview of Lack of Informed Consent

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In healthcare procedure standards, a healthcare professional has the duty of care to provide the patient with the necessary information to make an informed decision on their procedure.

Normally, the consent process involves an authorized healthcare professional advising as to all risks and benefits associated with the procedure, the steps of the actual procedure itself, and any alternative therapies or procedures available to the patient. The patient can then either consent to move forward with the procedure or decline to continue or choose to go with an alternative procedure after weighing all the known risks and benefits.

No matter to what extent the healthcare professional recommends the procedure, the patient always has the choice to decline, but only when they’re given the option. Without an informed consent, patients don’t have the knowledge necessary to weigh their own thoughts on the matter and either accept or decline health care that could dramatically effect their quality of life.

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Procedures Requiring Informed Consent

Though every procedure inside a healthcare setting requires a consent, there are some procedures that have risks associated with them that strictly require a written consent. Those procedures can include surgeries, trial runs, radiation, chemotherapy, vaccinations or injections, blood transfusions, invasive procedures, or any procedure where sedation or anesthesia is required.

When it comes to invasive procedures such as a surgery, childbirth or another procedure requiring sedation or anesthesia, consent is likely to be asked twice. Because anesthesia comes with its own risks and benefits, outside of the procedure, the patient may have to consent to the anesthesiologist, as well as a surgeon or doctor.

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Florida’s Informed Consent Statute

Florida law has three parts to their general informed consent law which include:

  • (1) General understanding of the procedure;
  • (2) Medically acceptable alternative procedures or treatments; and
  • (3) The substantial risks and hazards in the proposed treatment or procedure recognized by other health professionals performing similar treatments or procedures (Fla. Stat. §766.103).

A consent that has met all the standards provided by this law and is evidenced in writing signed by the patient or another authorized person, can serve as a rebuttable presumption under a court of law.

If a patient is part of a trial run or medical experiment for his or her condition, Fla. Stat. §499.0295 or Florida’s Right to Try Act states an informed consent in this case should provide:

  • (1) An explanation of currently approved products and treatments for the patient terminal illness;
  • (2) An attestation that the patient agrees with the physician in believing all of the currently approved products and treatments are unlikely to extend patient’s life;
  • (3) Identification of the specific drug or biological products or device patient is going to try;
  • (4) A realistic description of the outcome of the specific drug, biological product, or device;
  • (5) A statement that states the patient’s health plan or third-party administrator and physician are not obligated to pay for care or treatment as a consequence of the experimental use of the investigational drug, biological product, or device, unless stated otherwise;
  • (6) A statement stating the patient’s eligibility for hospice may be retired if the patient begins use of the experimental drug, biological product, or device, unless stated otherwise; and
  • (7) A statement stating the patient is responsible for all the damages or results occurring from the experimentation, unless otherwise stated by a contract between the manufacturer of the product and the patient.

Filing for a medical malpractice case under lack of consent can become difficult if the patient had agreed to the consent and signed the consent, but then claimed he or she signed without understanding what the doctor was saying (although if a signed informed consent form lacks critical information it may actually serve as proof of a lack of informed conset). The law can then protect the health physician who had met all three requirements and had the written signature to prove it.

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Additional Resources

American Medical Association – The American Medical Association (AMA) claims informed consent as part of a physician’s code of medical ethics. In the explanation that AMA provides, it gives a bigger role to physicians to gage the level of understanding patients have when providing consent. Click to learn more about informed consent from the medical perspective.

Food and Drug Administration (FDA) – The Food and Drug Administration states various federal codes that impose informed consent laws on the clinical investigations and trial runs of human subjects. The FDA further discusses the requirements of and the exceptions to informed consent, including those brought on life-threatening situations, military operations, and public health emergencies.

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Miami-Dade Lawyer for Lack of Informed Consent

If you were a victim of a lack of informed consent, you need to reach out to an attorney right away. Meeting with an attorney will help you gage perspective and see if you have the grounds to file a lawsuit. Medical malpractice cases are hard to prove, but our attorneys at Abrams Justice Trial Attorneys have a strong team of litigators who can defend you in court.

Lack of informed consent can be serious, especially if the end procedure resulted in aggravated consequences that are now impacting you physically and emotionally for the rest of your life. If the physicians failed to provide you the necessary information to make a righteous decision about your body, then you need to hold them accountable.

Our attorneys at Abrams Justice Trial Attorneys work confidently for clients across Miami-Dade County and the cities of Miami, Hialeah, Coral Gables, Doral, Cutler Bay, and Homestead. Call (305) 709-0880 for a confidential consultation or fill out an initial contact form at the bottom of the page.

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