If a doctor didn’t perform up to the usual standard of care during your procedure and you came to harm as a result, you may be a victim of medical malpractice. Many people think that, having given informed consent prior to the procedure, they no longer have the right to take legal action against a negligent health care provider. However, that is not necessarily true. It depends on whether the consent was valid, the harm was expected, and the doctor’s actions were appropriate.
What Is Informed Consent?
Informed consent is an agreement between you and your doctor. You agree to assume certain risks involved in the procedure, and your doctor agrees to perform up to the established standard of care, providing the agreed-upon procedure in a manner consistent with best practices.
Another way to look at informed consent is as a contract. If your doctor does not live up to what he or she agreed to, it is a breach of the contract, which gives you the right to pursue legal action.
What Is the Difference Between Informed Consent and a Waiver?
A waiver is another type of legal agreement between two parties. When you sign a waiver, you give up your right to pursue legal action if you are hurt in an accident and the other party’s at fault.
Informed consent is not a waiver. When you sign an informed consent form, you acknowledge certain risks of the procedure and give permission for it to take place anyway. If a complication arises because of the risks your doctor informed you of, it affects your ability to take legal action against him or her, but you do not waive all your legal rights.
Under What Circumstances Can You Sue with a Valid Informed Consent?
Prior to a procedure, your doctor does not inform you of all the possible risks of your procedure. That would be impossible. Only the most important risks are mentioned. If your current condition was not outlined as a risk in the informed consent form, you may be able to sue for medical malpractice if it was the result of negligence by your doctor.
However, a bad outcome is not malpractice per se. You have to be able to demonstrate that your doctor did something wrong. You can also sue for malpractice if the doctor performed a procedure other than what you had agreed upon.