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Medical Malpractice. It's All We Do. 206-443-8600

The Consent Form – Not A Waiver of Liability

Posted Monday, October 22, 2018 by Tyler Goldberg-Hoss

Invariably when handling a claim involving a surgical or other procedure error, folks listening to the claim want to know about the form the patient signed prior to the procedure. The form, which many of us know from signing ourselves, gives the doctor consent to perform the procedure, and alerts the patient to the possible risks to the surgery that the patient is undertaking.

In addition to the specific risks of the surgery in question, invariably there is a long list of other, more general ones. A recent example included “stroke, device failure, infection, nerve injury, blood clots, heart attack, allergic reactions, respiratory failure, kidney failure, bleeding, severe blood loss, and risks of blood transfusions.”

For some folks, once you sign the form and agree to let the surgeon perform the surgery, there’s no real recourse if something goes wrong. The question of whether the surgeon was negligent is less an issue, since the patient understood that bad things can happen. Unfortunately, a bad thing happened in this case. Tough luck. Leaving aside whether you can consent to malpractice (you can’t), the consent form is important enough to some folks to overcome a surgeon’s negligent actions.

But there are other times when the form doesn’t tell the whole story, such as when the patient has agreed to a surgery without a full, necessary understanding of what he or she is getting into. Because a surgeon must obtain a patient’s “Informed” consent, that includes more than just spelling out the risks.

In Washington, as in other jurisdictions, surgeons must not educate their patients on every possible risk that can occur, or every possible other treatment options. However, they must tell their patient about all “material facts” of the proposed surgeon, things that a reasonable patient would think is important.

And this can include not only things as risks, but also the possible alternatives to the proposed surgery, including other possible treatment options.

What if your condition can be treated by a procedure other than the one being proposed by the surgeon? What if it is similarly effective at treating your medical problem, and carries less risk? Would you want to know that before deciding on surgery?

Often times, surgeries are uneventful, no risks materialize, and outcomes are good. However there are some times when a surgery results in a very bad outcome. Looking back, the patient or her family questions whether surgery was such a good idea in the first place. In these circumstances, it may be that the consent process was inadequate, and a reasonable patient sitting in front of the surgeon would have made a different choice had she had all the necessary information.

The informed consent process, then, is not simply a form to put in front of a patient right before surgery. It is a process, including giving the patient all the necessary information to agree on the surgery. This is consistent with the doctrine of patient sovereignty: all patients of sound mind get to decide what is done to his or her own body.

Chemnick | Moen | Greenstreet
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