Risk is part of any medical procedure, and patients have the right to refuse certain treatments and procedures if they feel they are too risky. The concept, known as informed consent, gives doctors the legal responsibility to inform patients about the risks inherent in a recommended procedure or treatment.
It is a simple yet incredibly important concept as far as malpractice cases are concerned. If a doctor fails to disclose important risks to a patient, and that patient would have refused the treatment or procedure in question had they known the risks, the doctor may be open to a malpractice suit.
Note the words important risks. Doctors only need to disclose risks deemed important by one of two standards:
- Would another competent doctor have informed their patient of this risk?
- Would another normal patient have made a different decision regarding the treatment had they known the risk?
Which particular standard applies in a case depends primarily in which state that case is tried. Some states apply the first standard, others the second.
This is one of the many reasons anyone dealing with a medical malpractice lawsuit should retain an experienced malpractice lawyer, because additional laws may also apply depending on which informed consent standard a state applies. For example, courts in states that use the second standard often mandate that doctors must also inform patients of realistic alternative treatments, even if they do not recommend any of the additional options.
Dr. Michael M. Wilson is an attorney and a physician who earned his undergraduate degree from the Massachusetts Institute of Technology and his legal and medical degrees from Georgetown University. He has focused in the area of medical malpractice for more than three decades and secured more than $100 million in settlements and verdicts on behalf of clients throughout the country. He is admitted to practice in the District of Columbia and New York as well as the U.S. Court of Appeals for the District of Columbia and the U.S. Supreme Court. He is listed in America’s Top 100 High Stakes Litigators.
