Patients in the United States have a right to participate in making decisions about their own medical treatment. In order to ensure that patients actually have the opportunity to do this, consent to medical treatment is required. While physicians are the ones who must obtain consent, hospitals also have significant responsibilities for ensuring that patients are given proper information and the opportunity to say yes or no to medical procedures. When a hospital fails to have policies in place that ensure informed consent, or when employees of a hospital fail to follow the policies, a hospital can be held liable for medical malpractice.
Informed consent is the opportunity to make an educated decision about whether to undergo a specific medical procedure, after learning about what the procedure entails and what the risks and the benefits of the procedure are.
Consent can generally be broken into two categories:
Federal guidelines defining what informed consent means and when informed consent is required can be found in the Centers for Medicare and Medicaid Services (CMS) Conditions of Participation. Any hospital that obtains funding from or sees patients covered by Medicare and Medicaid must be in compliance with these guidelines. Some states have additional informed consent requirements and hospitals can always go above and beyond meeting the minimum requirements in order to avoid a potential malpractice lawsuit for failure to obtain informed consent.
Informed consent is generally required any time a procedure is invasive or potentially dangerous. The CMS Conditions of Participation also specifically mandate that informed consent must be present in a patient's chart before any type of surgical procedure is performed, with the exception of emergency surgery.
Informed consent is not required in an emergency situation where a patient cannot give consent and where a physician must act quickly in order to avoid risk to a patient. Whenever possible, family members or someone with medical power of attorney should be consulted to obtain consent in these emergency situations. When this is not possible, a physician can act without informed consent if the patient could suffer serious injury or death unless provided with immediate medical treatment.
Hospitals should have policies in place to ensure that these informed consent requirements are met. If a hospital's policy is found to be below that which a reasonable hospital would have, or if its enforcement procedures are found to be lax, the hospital can be considered negligent. If a hospital employee acts without the informed consent of the patient, the hospital may also be vicariously liable for the actions of its employee, and thus sued and held jointly and severally liable for all damages.
Informed consent is not as simple as a patient just saying yes or no to a procedure. In order for consent to be truly informed, generally the patient must be told:
Hospitals have an obligation to ensure that a patient receives all of this information. Some hospitals have taken extensive steps to ensure that a patient is adequately informed, including providing consent forms in multiple languages and even providing educational videos and diagrams to show a patient what a procedure involves.
A failure to obtain informed consent can be considered hospital medical malpractice. If you believe you have been the victim of hospital medical malpractice, it is important to speak with an experienced attorney who can help you to evaluate whether you had the opportunity to give informed consent or whether the hospital was negligent and can thus be held liable for damages.