Informed consent compensation
It is up to the patient as to whether or not to undergo a particular surgical procedure or be subject to particular medical treatment after weighing up all of the risks and benefits. Sometimes, however, patients are not provided with sufficient information with respect to proposed surgical procedure or medical treatment or the severity of their medical condition to make an informed decision.
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What constitutes informed consent and “failure to warn”?
Every surgery and medical treatment carries an element of risk. Every patient, therefore, is entitled to be provided with information as to the risks and benefits of a particular surgical procedure or medical treatment so that they can make an informed decision as to whether or not they agree to proceed with the treatment and provide their “informed consent”.
Informed consent must be obtained from a patient prior to administration of any treatment to a patient and must be done in full knowledge of the possible consequences of the treatment, including adverse consequences, even if the risk of an adverse outcome is relatively small.
Medical negligence compensation claims involving “informed consent” fall under the umbrella of “failure to warn”. However, medical negligence compensation claims involving “failure to warn”, also, include circumstances where patients are not advised of the severity of their medical condition and what ought to be done to treat the same or what to do when certain symptoms are present or develop.
It is best practice to obtain “informed consent” for treatment from a patient in writing by getting the patient to sign a consent form.
FREQUENTLY ASKED QUESTIONS
Informed Consent Compensation
Before a patient agrees to undergo proposed medical treatment, the patient must be warned about the risks and adverse consequences of the proposed treatment in order to ensure that the patient has given his or her informed consent. Examples of medical negligence compensation claim involving “informed consent” and “failure to warn” include:
Obtaining consent from the patient for one type of medical treatment, but performing another
Example: A plastic or a cosmetic surgeon advises the patient and obtains his or her consent to perform a “chin tuck”, but during the procedure and without the patient’s consent decides that the patient would be better off with a “face lift” and performs the same, which results in significant complications. In such circumstances, the plastic or cosmetic surgeon’s actions would amount to “battery” or an “assault” or “trespass to the patient’s person”, because the plastic or cosmetic surgeon performed the “face lift” without the patient’s consent.
Not disclosing to the patient information in relation to the medical professional’s experience and ability to perform a particular surgical procedure or administer medical treatment
Example: A general surgeon who specialises in hernia repairs performs removal of a parotid gland located on the right side of the patient’s face, which is considered to be a highly specialised procedure and which should only be performed by experienced specialist surgeons who perform this type of procedure or facial surgery on a regular basis. During the surgical procedure, the surgeon causes significant nerve damage to the patient’s facial nerve and prior to the procedure does not advise the patient of the lack of his training and experience in performing the procedure and the availability of more experienced specialist surgeons who perform this procedure on a regular basis with few complications. If the patient had been warned, he would have been operated on by a more experienced surgeon and the damage would not have occurred.
Not advising the patient of the seriousness of his or her medical condition or how to deal with symptoms or complications if they arise
Example: A doctor performs a surgical procedure on a baby, but does not advise the parents of what complication can arise in the postoperative period and what the symptoms of those complications are that the baby ought to be monitored for whilst in the parents’ care. In the postoperative period, the baby exhibits irritability and fever as well as other symptoms. The baby’s symptoms are caused by an infectious process. A number of days later the baby is taken to a hospital emergency department and is diagnosed with sepsis and meningitis. Had the doctor who performed initial surgical procedure warned the parents of what symptoms may be indicative of post-surgical complication of infection, and, if present, the baby should be taken to an emergency department of a hospital for urgent review, and this occurred, the extent of the babies septicaemia and progression of same to meningitis would have been minimised or avoided.
There are many consequences of failure to obtain informed consent and failure to warn, some of which include:
- Undergoing a surgical procedure or medical treatment to which the patient would not have consented to and would not have undergone, had the patient been advised of the possible risks and consequences that occurred or materialised.
- Battery or assault or trespass to the patient’s person resulting in injury.
- Loss of opportunity to undergo surgery or medical treatment at the hands of a more skilled medical professional. Thus, avoiding the complication and injury that resulted from the treatment.
- Delay in diagnosis of a serious medical condition resulting in greater harm and irrecoverable damage (see our misdiagnosis + delayed diagnosis page).
- Undergoing treatment that was not necessary and was unlikely to bring about any therapeutic benefit to the patient.
If you believe that your healthcare professional has incorrectly diagnosed a condition or has breached their legal duty of care, you may have grounds for claim for compensation. A successful medical negligence claim for informed consent compensation can provide the care (both financially and emotionally) and support services you and your family need to live a better quality of life. Compensation can cover:
- Pain and suffering
- Domestic assistance and care
- Loss of earnings (present and future)
- Medical expenses (current and ongoing)
- Medical treatment, rehabilitation, medication and ongoing care
- Medical equipment
- Other compensations related to loss of quality of life.
A pain-free process
We aim to make the claim process as simple and stress free as we possibly can for our clients. During your initial consultation we’ll:
- explain duty of carefulness what’s involved in making a informed consent claim for compensation;
- give you a projected timeline of your claim process; and
- provide an estimate of the value of medical malpractice claim.
We can then proceed immediately and work with you to achieve the best possible compensation outcome.