Lack of Informed Consent

In New York, doctors are supposed to inform patients about the risks related to their upcoming procedures. Only after obtaining the informed consent of the patient may the doctor proceed with the treatment. At the center of informed consent is the principle that patients have the right to control their own medical treatment and the lack of informed consent strips this power from them. If you believe that you suffered damages because a physician failed to inform you of reasonably foreseeable risks and benefits before providing treatment, you should discuss the circumstances with the seasoned Syracuse medical malpractice attorneys at DeFrancisco & Falgiatano.

Doctors must communicate with patients about not only the benefits of a treatment, but also any risks and alternatives. Only after your doctor has discussed those risks with you is it appropriate to proceed forward with a particular treatment or procedure. Generally, patients must agree in writing that they consent to a procedure with all its attendant risks, before the doctor will proceed with administering the treatment. Under New York Public Health Law section 2805-d, lack of informed consent is defined as the failure of the person providing a professional diagnosis or treatment to disclose to a patient any alternatives, and the reasonably foreseeable risks and advantages involved as a reasonable health care provider in an equivalent situation would have disclosed, in a way that allows the patient to make an informed decision.

Doctors must obtain informed consent for operations, along with diagnostic procedures that require them to enter the body, non-emergency treatment, and participation in medical research. Parents and guardians need to provide informed consent for minors or adults found to be incompetent.

Simply failing to obtain informed consent does not mean a doctor will be held accountable for medical malpractice. Rather, you must have experienced harm as a result of your health care provider’s failure to obtain informed consent. Additionally, when risks of a procedure are commonly known, emergency care is needed, or patients tell their doctor that they do not want to be informed of the risks, a doctor may not need to disclose those risks.

To establish a lack of informed consent, you must show: (1) the doctor did not obtain informed consent, (2) in order to treat you, and (3) you suffered harm, (4) caused by the expected risks of the procedure. In other words, it may be appropriate to pursue a lack of informed consent lawsuit where a doctor performed a procedure without disclosing the risks or having you sign a consent form. Additionally, you must have been harmed by the complications, and must show that you would have declined treatment had you known about the risks.

For example, if you required spine surgery and your doctor did not tell you about the risks of dural tears or bleeding complications, and you suffered grave injuries as a result of these known risks, you may have an informed consent case. However, if you needed emergency surgery and were unconscious such that obtaining consent was not possible, you may not be able to proceed under this theory. During a consultation, a lawyer can review the facts of your situation and evaluate whether the physician failed to provide informed consent and whether such omission, if made, is actionable.

You rely on your doctor to provide you with appropriate and timely treatment when you are sick or injured. Even so, your doctor should discuss the downsides of treatment with you so that you understand and can make an informed decision. If you were harmed by a health care provider due to lack of informed consent, you should discuss what happened with an experienced medical malpractice lawyer with trial experience. At DeFrancisco & Falgiatano, we represent patients and their families in Syracuse, Rochester, and other places in Upstate New York, including in Auburn, Canandaigua, Lyons, Oswego, Watertown, Elmira, Herkimer, Ithaca, Lowville, Utica, Wampsville, Binghamton, Oneida, and Cooperstown. Please contact DeFrancisco & Falgiatano at 833-200-2000 or via our online form.