Petrov Personal Injury Lawyers | August 31, 2022 | Medical Malpractice
Medical providers are entrusted greatly with your care and that of your loved ones. A basic tenet in medicine is that you have the right to make informed decisions about your care. Providers obtain this consent expressly or impliedly. When they fail to obtain proper consent, this may form the basis of a medical malpractice claim.
If you believe that your medical provider did not have your consent when they conducted a procedure, an experienced medical malpractice lawyer can help. They can review the circumstances surrounding your injury and explain whether you may have grounds for a medical malpractice claim.
What Is Express Consent in California?
Many medical procedures carry certain risks, so it is important that patients are aware of them before agreeing to undergo treatment. The clearest way to get consent is through express means, which usually involves the healthcare professional explaining the procedure in person or in writing and having the patient agree to it.
For consent to be considered informed, the patient must be made aware of the following:
- The procedure being considered
- The risks and benefits of the procedure
- Other alternatives to the procedure
- The risks and benefits of the alternatives
The patient must also be allowed to ask questions and receive clear answers from their healthcare provider.
What Is Implied Consent in California?
Implied consent is not as straightforward. Typically, implied consent is expressed through behavior instead of words. For example, if a patient shows up in an emergency room, they are consenting to receive treatment. Implied consent may involve other nonverbal actions, such as the patient nodding their head or preparing to receive treatment.
Claims for Lack of Consent
Professional medical negligence occurs under California law when a healthcare provider commits a negligent act or omission while rendering professional services. The act or omission must be the proximate cause of a personal injury or death, and the medical services must be within the scope of the services provided by the healthcare professional.
In the realm of lack of consent, a medical malpractice claim may be raised if the medical provider:
- Failed to identify or properly describe a complication that arose during treatment
- Failed to adequately explain how common a particular complication is
- Failed to give an adequate explanation of the procedure or associated risks
An experienced medical malpractice lawyer can investigate and gather evidence to help support your claim.
What Do You Have to Prove in a Lack of Consent Case?
It is usually not enough for you to show that the healthcare provider did not obtain your consent.
Instead, you would need to prove:
- You suffered a separate injury or worsening of an existing injury that would not have occurred if you had informed consent
- You were harmed by the medical provider
- The harm was a direct result of not obtaining informed consent
- You would not have given consent had you actually known the risk you faced
In California, a separate claim for medical battery occurs when a healthcare provider performs a medical procedure without the patient’s consent; or the patient consented to one medical procedure but the healthcare provider performed a substantially different medical procedure, the patient was harmed, and the healthcare provider’s conduct was a substantial factor in causing the patient’s harm.
A medical malpractice lawyer can evaluate your claim during a free case review.
Potential Compensation Available in Medical Malpractice Cases
If you were injured because of a lack of consent, you may be able to recover compensation for the following losses:
- Medical expenses
- Physical and occupational therapy
- Lost wages
- Lost earning capacity
- Pain and suffering
- Loss of enjoyment of life
- Scarring or disfigurement
A medical malpractice lawyer can help fight for the compensation to which you are entitled.
Contact the North County Medical Malpractice Lawyers at Petrov Personal Injury Lawyers for Help Today
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