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Medical negligence and consent: I didn’t know about the risks

Medical negligence and consent: I didn’t know about the risks

With modern technology and information available at our fingertips, as a community we are much more aware of our legal rights. We know that in most social or business interactions it is necessary to obtain or give permission or consent to do certain things. We are even giving our consent to the specific kinds of information that we allow social media platforms and websites to collect about us. This all applies to our medical treatments too.

What is informed consent?

When we need medical attention, we place our trust into the hands of medical practitioners. Informed consent requires a medical practitioner to give a patient the necessary information in order for them to make an informed decision about their medical care. This includes telling everything we need to know about our condition, how it can be treated as well as the pros and cons of said treatment, so that we can make an informed decision.  The situation becomes complicated when a patient feels that they were not aware of all the facts relating to their treatment and would have made a different choice had they been given all the information.

It is understandable that a patient cannot be consulted on every single aspect of a disease or treatment. It may be that the risk of a complication is minimal and that a certain treatment or procedure is common practice in medical circles. Some practitioners may be so confident in their experience and knowledge of a condition, so they might not feel the need to explain all treatment options. They may think you won’t understand, so they gloss over the details. However, as a patient, your doctor has to inform you of the recommended forms of treatment, the potential risks of the treatment, and the possibility and extent of side effects. If there are any alternative treatment options, your doctor is required to present them to you.

Once you have all the relevant information, you have a right to choose to decline treatment or get a second opinion. It is however important to understand why a certain form of treatment is necessary and what the risks are should you not follow your doctor’s orders. The only time when your doctor can decide for you is if you are unconscious or incapacitated. This happens a lot during surgery. It’s also the only time when a doctor can treat you without your permission, because at that point, your treatment is literally a matter of life or death.

What if I signed a consent form?

Did you sign a consent form? You may believe this absolves a doctor or hospital of any liability, but it is not a “get out of jail free” card. Remember: you may have given your consent and you may have signed a form – but were you properly informed? There are still exceptions where you may be able to claim and therefore you should speak to your attorney to get advice on the strength of your case.

A consent form could highlight any relevant facts not disclosed to you at the time of your decision and this can add weight to your claim.

Informed consent and medical negligence claims

Informed consent requires that sufficient information is provided to the patient to make an informed decision and that the patient actually understands the information and the implications of acting on that information.

Unfortunately, even in the event that every precaution had been followed and every step taken to ensure a successful medical procedure, things do not always run according to plan. This could result in a negative or unwanted result, which impedes or otherwise leaves the patient worse off than before.  In such instances the court would ask whether the patient would have made a different decision and if so, whether it would have changed the outcome. Even if a patient had not given consent, the outcome may have been exactly the same or worse and therefor consent would have made no difference and therefore it would not satisfy the test for medical negligence.

If you feel your treatment and health has been compromised as a result of uninformed consent, you can contact us at Paul du Plessis Attorneys so that we can answer any questions you may have.  We offer obligation free consultations and can be contacted on 012 809 1588 or by e-mail at paul@pauldup.co.za