In a recent case, a plaintiff filed a medical malpractice claim, alleging that the defendant negligently failed to obtain informed consent. The plaintiff suffered a lower back injury and subsequently underwent a lumbar spine surgery. Prior to the surgery, the plaintiff and the doctor talked about the risks and consequences involved in the surgery. According to the plaintiff, the doctor told him that the surgery had a 99% chance of success, that he would not have any more pain, and that he would recover in three days. The doctor denied having made these statements. The plaintiff also signed a consent form before surgery. The form he signed included an acknowledgement that he had been informed of significant risks, and it listed several potential consequences. It also stated that no result or cure had been promised.
After the surgery, the plaintiff’s lower back pain increased, and he also experienced additional symptoms, including numbness and shaking in his leg, as well as mental health issues. He also found out after the surgery from another doctor that the success rate of the surgery he underwent was actually 50% or less. He then sued his doctor for failure to obtain informed consent because he did not understand the potential consequences.
Under the state’s law, the plaintiff had to show that the risks that he suffered, particularly a worsened condition and increased pain, were material risks of the procedure. The defendant argued that the plaintiff failed to provide an expert on the issue of materiality, but the court found that an expert was not required. The treating doctor in this case testified that he discusses the risks with every patient because patients can experience further pain after this surgery. Thus, the doctor’s own statements indicated that increased pain and a worsened condition were material risks. For that reason, the court allowed the case to continue.
If a person undergoes a medical procedure, express or implied consent is required. However, there are two exceptions: if the person is unable to give consent, in which case the health care professional generally needs to obtain consent from a person authorized to give consent on the person’s behalf; or if an emergency comes up during a procedure, and it is impossible or impractical to obtain consent.
In order to be valid, the consent given must be informed. The person must understand the risks. In general, a medical malpractice claim based on a failure to obtain informed consent generally requires that a medical professional had a duty to inform the patient of risks, results, and alternatives, that the professional did not disclose or did not adequately disclose the risks, that the patient consented because of the failure to disclose but would not otherwise have consented, and that the patient was injured.
In addition, in Illinois, a claim of failure to obtain informed consent in a medical malpractice case generally requires that the plaintiff present expert testimony. This testimony is required to demonstrate what a reasonable medical professional would have told the patient under similar circumstances.
Do You Have a Medical Malpractice Claim?
If you have undergone a medical procedure but failed to give informed consent, you may be able to sue for medical malpractice. The skilled attorneys at Moll Law Group are committed to helping individuals seek the compensation that they deserve. We help people file claims who have suffered from a misdiagnosis, a surgical error, a birth injury, or another form of medical malpractice. If you believe that you have suffered medical malpractice in Chicago or the surrounding area, fill out our free consultation form or call us at 312-462-1700.
See More Posts:
Recent Study Highlights Risks of Emergency Surgeries, Illinois Injury Lawyer Blog, May 18, 2016.
Evidence of Lack of Insurance Determined Irrelevant in Car Accident Claim, Illinois Injury Lawyer Blog, April 30, 2016.
Woman Injured by Hot Air Balloon While Standing in Line Permitted to Sue Despite Signed Waiver, Illinois Injury Lawyer Blog, May 11, 2016.