What to do when your doctor or surgeon does not discuss risks

When I meet with patients and their family members about potential medical malpractice cases, I commonly hear about how the doctors involved did not explain things to them clearly. Quite often, clients tell me, doctors are in a hurry, glaze over risks of a treatment or procedure, and talk over their heads in complex language that is simply incomprehensible.

National Public Radio published a piece in December 2017 on this topic that caught my attention. The article, “Want Help Explaining a Medical Procedure? Ask a 9-Year-Old,” explains that while the average American reads at an eighth-grade level, most medical materials and physician conversations presume that patients can understand difficult medical jargon.

As a Houston, Texas medical malpractice attorney, this concerns me because doctors are legally responsible for making sure that patients understand the risks and benefits of a proposed treatment or surgery before giving permission to proceed.

Under Texas law, this is called the informed consent process. It is so important that the law does not allow physicians to delegate it to a nurse or anyone else. It is a doctor-patient conversation where the doctor bears the burden of explaining things in a way that the patient can understand.

I cannot tell you how many times that clients have said things to me like, “If I had only known that this could happen, I would have never had the surgery” or “If the doctor had told me that this was a risk, I would have never done it.”

This brings to mind the terrible potential complications of elective bariatric surgery that some of my clients have experienced—things like death, never being able to eat solid food again, or a continuous cycle of nausea, vomiting, and pain. People often consider elective plastic surgery to be risk-free because many doctors focus on the aesthetic benefits, while minimizing any risks. Yet, I am working on a case right now where a woman in her 40s died from blood clots that caused pulmonary embolism following elective plastic surgery.

The truth is that every surgery and many non-surgical treatments and medications carry a risk with them. Here are two ways that you can improve your safety as a patient by understanding those risks before choosing to proceed.

First, the informed consent process includes paperwork that the patient must sign. I recommend waiting to speak to the doctor or surgeon before signing it. A nurse frequently is tasked with obtaining patient signatures on these forms. Quite often, this conversation takes a matter of seconds, with no real information being exchanged. Once the patient has signed off on the forms and given written consent, some physicians have little patience for answering questions or having a discussion about risks.

Start by telling the nurse that you would like to read the consent forms because you may have questions. Earlier this year, I accompanied a loved one who was hospitalized for an unplanned gallbladder surgery (cholecystectomy). A nurse came into the room shortly before the surgery with the informed consent paperwork. I looked it over closely and asked some questions about the anesthesia provider. I told the nurse that we wanted to have an anesthesiologist physician handling 100% of the procedure, rather than a certified registered nurse anesthetist (CRNA), and wanted the consent forms to reflect this. This led to a conversation with an anesthesiologist who then handwrote the changes that we wanted on the informed consent paperwork. Everything worked out perfectly.

Second, after reviewing the informed consent paperwork, ask to speak to the doctor or surgeon before signing it. This is the time when the physician explains the risks and benefits of the proposed surgery or treatment. I recommend not getting distracted by the benefits, and asking questions about: (1) the risks of proceeding with the proposed treatment or surgery; (2) the risks of doing nothing at all (not having the treatment or procedure); and (3) what other treatment alternatives are available and what their risks and benefits are.

We are here to help

If you or someone that you care for has been seriously injured as a result of medical malpractice, then call the experienced medical malpractice attorneys at Painter Law Firm, in Houston, Texas, at 281-580-8800, for a free consultation about your potential case.


Robert Painter is a medical malpractice and wrongful death attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who files lawsuits on behalf of patients and family members against doctors, surgeons, hospitals, and other healthcare providers. Since 2011, he has been recognized by Martindale Hubbell with the prestigious AV designation for his legal competency and ethics. In 2017, he was recognized as one of Houston’s top lawyers by H Texas magazine.

Robert Painter
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Robert Painter

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm Medical Malpractice Attorneys in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him for a free consultation and strategy session by calling 281-580-8800 or emailing him right now.