Could Doctors Get into Legal Trouble Despite an Informed Consent Sign Off?

Ever heard of cases where an informed consent form was signed by a patient and the doctor proceeded with a procedure in full confidence that the law would protect him/her only to find him/herself being hauled to court and found guilty? Yes, these do happen. So, what is consent and what is informed consent in the field of medicine and what are the pitfalls that can get doctors into trouble after the document has been signed by the patient?

Consent vs. Informed Consent

Consent also known as implied consent is not a formal agreement but an implied one often through non-verbal communication such as a head nod, by facial expression or by an action. For example, a patient making an appointment to see a skin specialist is implying that he/she consents to be being treated by the specialist. It is understood between the two parties that the patient will seek treatment from the doctor and the doctor will provide the service.

Informed consent however is a little different. It is a legal term which must consist of seven elements to qualify to become an informed consent. The seven elements are:

1.        The patient is considered competent and understands what it is they are consenting to.

2.        The decision has been voluntarily made by the patient and is without any  element of coercion.

3.        Clear and sufficient information has been given to the patient to help him/her arrive at his/her decision. For example, the doctor has informed the patient of the need for the medical procedure and the potential side effects or results of the procedure as well as what might happen should the procedure not be undertaken.

4.        A medical plan has been recommended to the patient with treatment progression and duration of the various treatments involved in the plan.

5.        The patient understands the terms and the details being told him/her in points 3 & 4.

6.        The patient has had sufficient time to think on the treatment and has arrived at a decision to go ahead with the plan.

7.        The patient has authorized the treatment plan by signing on the form. The signature indicates that they understand and agree to the treatment plan.

Informed consent involves a process that constitutes consultation and counsel that is provided by the doctor and the hospital to the patient. Why after such a laborious process, would doctors be taken to court for negligence and other forms of malpractice?

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