When a physician is going to provide care or perform a surgery or procedure for a patient, Texas law provides that obtaining informed consent is a non-delegable duty of the physician. That means it’s such an important responsibility that doctors aren’t supposed to delegate it to a nurse or other staff member.
That’s the way it’s supposed to work, but in reality many physicians don’t like to talk about informed consent paperwork until they are sued for medical malpractice.
What is informed consent?
Under Texas law, unless a patient gives consent to treatment, if a physician or healthcare provider touches the patient it may constitute medical battery. There are some emergency situations where consent is presumed, but this is the general rule. When there’s no consent whatsoever, a patient may have a claim for medical battery.
When there’s a question about the sufficiency of consent, the potential cause of action for a patient under Texas law may be the lack of informed consent.
Informed consent is more than a stack of paperwork. It’s a process where the physician communicates with the patient about the potential risks and benefits of a proposed treatment or procedure and compares the risks and benefits of alternative treatments or doing nothing at all.
The idea behind informed consent is that a patient is relying on the physician’s expertise and must be fully informed in order to make an intelligent healthcare decision.
The reality of informed consent
We’ve represented many patients who have explained that their physicians and surgeons never discussed the risks and benefits, or even existence of alternative procedures. In fact, many of our clients explained that their doctor left it up to nursing or administrative staff to have the informed consent paperwork signed before they even had the opportunity to meet the doctor.
The reality of many medical and surgical practices is that the informed consent paperwork is little more than an administrative afterthought. Some physicians and surgeons feel that they know what’s best for their patients and just want to get on with it. They prefer the nursing or administrative staff to get the paperwork out of the way so they can move onto what they deem as more important.
A prudent patient will review the paperwork and ask questions. Informed consent forms will list a host of complications that can occur, and it’s important to understand them before agreeing to proceed with surgery or treatment. The conversation about the treatment plan with the physician or surgeon is a good time to ask if there are less risky alternatives and what the risks of doing nothing are.
A patient can’t give consent for negligence
In general, Texas law is unforgiving to parties who don’t read contracts and other documents. In medical practice lawsuits, attorneys for physicians and other healthcare providers invariably question injured patients about the various risks that they initialed and signed off on as part of the informed consent paperwork.
The combined conversation and paperwork for informed consent should give the patient a good idea of complications and things that could happen despite good, appropriate care. A patient’s informed consent, however, never excuses the negligence of a physician or surgeon. We have had cases where well-meaning family members have told injured patients that they don’t have a case because they signed informed consent forms. That’s simply not true.
If you’ve been injured because of poor medical, surgical, or hospital care in Texas, contact a top-rated, experienced Texas medical malpractice lawyer for a free consultation about your potential case.
