Published on

When facing a serious medical treatment or procedure, it’s easy to sign almost any form the hospital puts in front of you. From insurance releases to HIPAA statements, you may sign something you do not fully understand. In some situations, a healthcare professional may fail to fully disclose all pertinent information about the surgery, medication, therapy, or other treatment you will undergo.

It is unlikely, however, that you will sign any form that completely absolves a hospital or doctor from any malpractice claim. In fact, in some cases, lack of upfront information can be grounds for a lawsuit.

What is informed consent in Maryland and Washington D.C.?

If you’ve ever undergone a medical procedure or treatment, you have likely signed a release or consent form. These forms state what procedure you are about to undergo, and your signature acknowledges that you consent to have this procedure enacted on your person. The document also outlines the fact that the treatment’s probability of success and its alternatives have been discussed with you.

In essence, an informed consent document acknowledges that your doctor or other healthcare provider has educated you about the risks of the procedure and you are aware of potential complications that may arise. In addition to actually signing the paperwork, your physician must verbally explain the risks of the operation or treatment. There should be ongoing communication about your treatment.

Informed consent is not required in emergency situations.

Medical malpractice claims based on lack of informed consent

Poorly written consent forms are dangerous, and can be grounds for a medical malpractice claim.  Additionally, a doctor might not list all the statistically relevant complications that can arise from a procedure, while well-crafted consent forms will painstakingly list every possible complication and details therein.

In Maryland and Washington D.C., informed consent cases are determined on the basis of the “reasonable patient” perspective. The question the courts look at is, “What would a reasonable patient want to know about the proposed surgery or treatment?”

In Maryland, the courts use an “objective test” to then decide whether a reasonable prudent person in the patient’s position would have had the surgery or therapy had the doctor disclosed the material risks.

In Washington D.C., the courts use a “subjective test.” In that case, the courts examine whether that particular patient (i.e. the actual plaintiff in the case) would have consented to treatment if the doctor had disclosed that particular risk.

If the physician failed to disclose a critical risk and it’s decided the patient may have opted out of treatment based on that knowledge, it may be cause for a medical malpractice claim.

Informed consent cannot bar claims of negligence

Signing a consent form does not preclude you from filing a malpractice claim in cases of negligence.  If the patient received negligent care, no legal form can supersede that practice.

If you think you have a medical malpractice case, whether from lack of informed consent or negligence, contact our experienced medical malpractice attorneys. Legal counsel is imperative when dealing with complicated legal claims.

Hold negligent doctors accountable with help from a medical malpractice attorney in Maryland or Washington D.C.

In the Baltimore and Washington, D.C. area, the attorneys of Schochor, Staton, Goldberg, and Cardea, P.A. provide highly skilled, comprehensive representation for any number of medical malpractice claims. To arrange a consultation, contact our office at 410-234-1000 or complete a contact form.