What is the difference between a failure to obtain informed consent and medical battery? The precise definition of informed consent and medical battery varies by state law. Generally a failure of informed consent occurs when a doctor fails to tell his or her patient about risks associated with a medical procedure, surgery, or treatment, or fails to inform the patient about safer treatment options. Medical battery occurs when a doctor fails to obtain any consent to perform a procedure, or performs a procedure that goes beyond the bounds of consent that was given. “Battery” literally means any non consensual touching. Therefore, when a surgeon performs a procedure without authorization, medical battery has occurred.
Some examples of battery include when a physician other than who was chosen by the patient performs a procedure or surgery on the patient. “Ghost surgery” occurs when an inexperienced resident performs surgery without the patient’s consent.
A related concept is medical fraud. Medical fraud occurs when a physician misrepresents material information that the patient relies on in deciding to undergo a procedure. For example, if a physician misrepresents his or her experience in doing the particular procedure, exaggerates the benefits, or downplays the risks, medical fraud has occurred. Medical fraud is increasingly common due to financial incentives and competitive pressures on major hospital systems and physicians to promote new medications or surgery, like robotic surgery, that has not been fully proven to be safe.
The Emergency Doctrine
One important exception to a claim of failure to obtain informed consent or medical battery is the emergency doctrine. The emergency doctrine holds that a physician may insert his or her best judgment in caring for a patient under emergency circumstances where the patient’s consent cannot be properly obtained. Whether informed consent is obtained or not, the physician nonetheless owes a duty to conduct any surgery, procedure, or treatment in a manner that is consistent with accepted standards of medical care.
Often, a surgeon will obtain a patient’s signature on an informed consent form without providing proper information upon which the patient can base his or her consent. For example, if the patient is not informed about material risks or safer options until immediately before undergoing sedation on the date of surgery, this is not considered to be adequate informed consent. Likewise, if a physician withholds key information, such as inexperience doing a particular procedure or an excessive complication rate, the patient has not given their informed consent. In fact, lack of any material information means that the patient is uninformed such that informed consent has not been obtained. Under the medical negligence law of many states, a medical malpractice lawyer will face a presumption that a signed informed consent form is valid and binding. However, this presumption can be overcome if the form does not describe all material risks and the patient is harmed by a risk not described in the form.
When a physician performs procedures that go beyond the terms of a patient’s consent, this is medical battery. Battery occurs with any non consensual contact, even if the surgeon has the subjective belief that the procedure will assist the patient.
Contact an Attorney
Finally, it is important to recognize that allegations of medical negligence contained in a medical malpractice lawsuit are not impacted by a signed informed consent form. While a patient may give consent for a surgical procedure, thereby acknowledging that there is a risk of complication, the patient does not accept that the surgery will be performed negligently or that there will be a negligent delay in diagnosing or a negligent delay in treating complications arising out of the surgery. If you or someone you love had complications with surgery, it couldn’t hurt to speak with a medical malpractice lawyer, like a medical malpractice lawyer in Cleveland, OH, to see if you might have a case.
Thanks to Mishkind Kulwicki Law for their insight into some of the negligence that could occur during a surgery.