Informed Consent

What is informed consent?

Mostly all surgeries and procedures come with some type potential risk. For example, when having a hernia repair surgery, there is the possibility of permanent nerve damage that may cause pain and discomfort post operation. Informed consent is simply being aware of all potential and known risks associated with a surgery or procedure before it is performed. Aside from a few exceptions, doctors must always get informed consent from patients before a procedure or surgery. If the doctor does not get informed consent, the patient may later sue for medical malpractice if they sustain injuries.

How do doctors get informed consent from patients?

Generally, before having a medical procedure or surgery performed, doctors have consultations with patients to let them know all known risk associated with the procedure. Of course, some risks may be unknown, as there is a first time for everything. However, doctors are required to disclose all known risks. At this point, the doctor should give the patient the opportunity to ask any questions and express any concerns regarding their upcoming medical procedure.

The next step in obtaining informed consent is signing consent forms on the day of the medical procedure. Although the patient likely already verbally consented to risk, the informed consent should be in writing for obvious legal reasons and to protect the doctor from medical malpractice lawsuits.

The law

In North Carolina, a patient may not recovery against a doctor for medical malpractice if:

(1) The action of the health care provider in obtaining the consent of the patient or other person authorized to give consent for the patient was in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities; and

(2) A reasonable person, from the information provided by the health care provider under the circumstances, would have a general understanding of the procedures or treatments and of the usual and most frequent risks and hazards inherent in the proposed procedures or treatments which are recognized and followed by other health care providers engaged in the same field of practice in the same or similar communities; or

(3) A reasonable person, under all the surrounding circumstances, would have undergone such treatment or procedure had he been advised by the health care provider in accordance with the provisions of subdivisions (1) and (2) of this subsection.

(b) A consent which is evidenced in writing and which meets the foregoing standards, and which is signed by the patient or other authorized person, shall be presumed to be a valid consent. This presumption, however, may be subject to rebuttal only upon proof that such consent was obtained by fraud, deception or misrepresentation of a material fact. A consent that meets the foregoing standards, that is given by a patient, or other authorized person, who under all the surrounding circumstances has capacity to make and communicate health care decisions, is a valid consent.

NCGS § 90-21.13.

The leading case for informed consent

Jerry Canterbury began having sharp pain in his back. In 1959, at age 19, he underwent a laminectomy – a spinal surgery that was expected to fix a ruptured disc. Little did Mr. Canterbury know, this was the beginning of his never-ending health battle. Before the laminectomy, Mr. Canterbury’s doctor reportedly described the surgery as “no more serious than an ordinary, everyday operation.” With that, Mr. Canterbury agreed to have the operation. On the day following surgery, Mr. Canterbury fell while he was trying to use the restroom at the hospital. He was then kept in the hospital for approximately three months as he recovered. At this point, Mr. Canterbury was partially paralyzed in both legs and incontinent. https://www.nytimes.com/2017/05/16/us/jerry-canterbury-medical-consent-paralysis.html.

Mr. Canterbury sued his surgeon and alleged that he failed to adequately warn him of the risks of his laminectomy. Mr. Canterbury ultimately lost his case, but a federal appeals court decision became the foundation of informed consent as we know it today. This case established the new standard of rather than revealing the risk and benefits another doctor would disclose, doctors must disclose information that a reasonable patient would want to know in deciding to have a procedure or not. Id.

Know your rights

As demonstrated by Mr. Canterbury’s case, it is obvious that you need to be well informed before giving your consent to having a surgery, procedure or receiving treatment. Sometimes we as patients can be very trusting of our doctors, which is to be expected, but you also must look out for your own best interest. Before giving your consent to receive medical treatment, be sure that your doctor has gone over the risks and benefits of your surgery, procedure or treatment. Do not be afraid to ask questions. Finally, instead of just skimming the consent form, be sure to thoroughly read it and if you are unable to, have someone accompany you who is able to read it to you or for you and who understands the language contained on the form(s).

If you have had a surgery, procedure, or received medical treatment and have sustained injuries that you believe are due to not being adequately informed of the risk, please call our office at 704-714-1450 to schedule a free initial consultation with one of our experienced medical malpractice attorneys.