In New York, medical malpractice claims are generally viewed from the patient’s perspective. There might be a reflexive belief that the medical professionals must have made a mistake that led to the negative outcome. In truth, there are many ways in which a doctor or hospital can harm a patient. However, there are viable defenses that medical professionals can use when they are confronted with allegations of medical malpractice.
In some cases, the claim was based on a lack of informed consent. According to the law, lack of informed consent stems from the medical professional not providing the person with alternatives to the treatment they have suggested or did not give the benefits and dangers of it. A medical practitioner is expected to provide this information. This can also be the basis for a defense, depending on the situation.
There are limits for a medical malpractice claim based on lack of informed consent
When a lack of informed consent is the basis of a medical malpractice filing, there is a limit on whether this would be a justified claim. First, it must be based on a non-emergency treatment, procedure or surgery. Second it must be a diagnostic procedure which is invasive or disruptive to the body.
The case could only be brought if a reasonable patient would have declined the treatment or diagnosis if they had all the available information. The failure to give that informed consent would then be a proximate cause of the medical issues they experienced in the aftermath. Proximate cause is generally a fundamental part of any medical malpractice claim.
Medical professionals could say as part of their defense that the risk would not be disclosed because it is too common to warrant it. Or the patient could have given assurances to the medical professional that they wanted to move forward with the treatment even though they were aware of the risks involved.
It is also a defense if the consent could not be given by the patient or on their behalf. The medical professional is expected to consider all the facts and circumstances and be reasonable in deciding if the risks and alternatives to the treatment were given to the patient and they knew it could have a significant impact on their condition.
Informed consent could be critical to medical malpractice defense
Medical malpractice cases can do substantial damage to a doctor or hospital’s reputation and be financially devastating. When the foundation of the case is based on a lack of informed consent, there are several ways to lodge an effective defense. From the start, the entire case needs to be assessed to determine a path forward.
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