What Does Informed Consent Have To Do With My Nova Scotia Medical Malpractice Claim?

by John McKiggan

Medical Malpractice can happen in two ways:

1. Negligence is when your doctor causes an injury because he or she failed to meet the standard expected of a reasonably competent physician;

2. Assault and Battery happens when your doctor does not have your informed consent to perform the medical procedure that caused your injury.

Consent to Medical Treatment:

Everyone has a legal right to decided what can be done with his or her own body. Lawyers refer to this right as autonomy.

What that means, in plain language, is that your doctor needs your permission (the legal term is informed consent) before your doctor can treat you.

What is Informed Consent?:

You can only give valid permission if you are provided with all of the information necessary to make an informed decision about your proposed medical treatment.

For example, assume you have the following conversation with your doctor:

Doctor: “I want to perform surgery on your leg. Do I have your consent?”

Patient: “Um…why do you want to do the surgery?”

Doctor: “Because it will stop the pain in your leg. Do I have your consent?”

Patient: “You can do anything you want as long as it stops the pain!

Patients Just Want to Be Cured

Many patients are concerned about curing or fixing the problem, illness or pain that brought them to the doctor in the first place. So when their doctor tells them that the proposed medical treatment will cure the problem, many patients simply agree without asking further questions.

What are the Consequences?

However, in order to give proper informed consent you must be able to understand the reasonable and foreseeable consequences of giving your permission, or not giving your permission, for the medical procedure.

What Shoud your Doctor Tell You?

It is generally accepted that in order to provide proper permission for medical treatment, your doctor must explain:

• The nature of the proposed medical procedure;

• The reasonable alternatives to the proposed medical procedure; and
• The relevant risks, benefits, and uncertainties related to each alternative.

How Do You Give Permission?

Your permission or consent may be expressed in words or implied by your actions. For example, when you are undergoing a surgical procedure your doctor will usually get you to sign a consent form as part of the consent process to confirm your permission to perform the medical procedure.

No Permission = Assault

Any medical procedure that is performed without proper informed consent is considered to be an assault. The doctor who performed the medical procedure will be responsible for any injury suffered by the patient in the course of the medical procedure.

He Said – She Said

Unfortunately, it is often difficult to win medical malpractice cases involving allegations of informed consent. Often the question of whether the risks were properly explained to the patient boils down to the doctor’s word against the patient.

Ask Questons – Make Notes!

Therefore, it is important to document the consent process by asking lots of questions and making notes of any discussions you have with your doctor before you undergo a medical procedure. Particularly, any discussion you have with your doctor about the risks, benefits and alternatives of the proposed medical procedure.

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If you are looking for a Nova Scotia Medical Malpractice Lawyer you can contact me for a free copy of my book: The Consumers Guide to Medical Malpractice Claims in Canada: Why 98% of potential medical malpractice victims never receive a penny in compensation.

If you believe you or a family member believe you may have been injured as a result of medical malpractice you can contact me through this blog, or call me toll free at 1-888-647-7201.

One Response to “What Does Informed Consent Have To Do With My Nova Scotia Medical Malpractice Claim?”

December 31, 1969 at 6:00 pm, Eniko said:

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