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Informed consent does not always prevent malpractice claims

On Behalf of | Jul 2, 2022 | Medical Malpractice

Informed consent is the disclosure of risks to the patient before a medical procedure. According to Texas Civil Practice and Remedies Code Sec. 74.101, the patient may recover damages if the doctor or provider fails to disclose potential hazards.

However, this statute is slightly misleading because disclosing the possibility of injury does not prevent medical malpractice claims. If you recently suffered from a surgical injury or misdiagnosis, continue reading to learn more about informed consent and how you still have legal rights to pursue damages.

Would a reasonable person consent?

In most cases of informed consent malpractice, the physician failed to explain the risks of a medical procedure fully. To have a case, the accuser must prove that a reasonable person would not proceed with the medical treatment if they had specific information. This case does not rest on the individual opinion of the accuser but rather the court’s definition of a reasonable person. So, although you might not consent to the procedure, the court takes a broader view of what a reasonable person would not accept.

Was the treatment necessary?

Even if the physician informs you of the known risks, this does not excuse them from negligence or malpractice. For example, a surgeon might recommend a procedure you do not need. Even if the damages it causes fall under the known risks, it does not matter if they informed you beforehand. You did not need the procedure; therefore, you have a malpractice case.

Medical practitioners have certain obligations to their patients, even if they disclose the risks. If you suffered from an injury, do not make the mistake of thinking doctors have total protection under informed consent.