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When lack of informed consent leads to medical malpractice

Florida patients have some important legal rights when they seek medical treatment. One of the most important of these is the right to informed consent. This means that before submitting to a course of treatment or a medical procedure, the doctor must advise the patient of the benefits, risks and alternatives and then get the patient's consent before proceeding.

Ideally the physician will discuss this information with the patient personally and confirm that the patient understands it before obtaining consent to proceed. The doctor should include in the discussion the diagnosis, the purpose of the procedure, and the risks and benefits. The doctor should advise the patient of alternatives to the proposed procedure, and the risks and benefits of these alternatives. If the patient agrees to go ahead with the treatment, he or she should then be asked to sign and date a document confirming they have received the information and that they agree to the procedure.

When the patient is mentally incapacitated, legal issues can arise as to who has legal authority to give consent on the patient's behalf. A health care agent appointed by the patient, or a legal guardian can generally give the required consent.

The requirement of informed consent does not apply if the physician is presented with a medical emergency in which the patient is unconscious or there simply isn't time to discuss the risks and benefits of treatment.

When a failure to obtain informed consent leads to injury or a worsened medical condition, the patient has the right to seek compensation in a medical malpractice lawsuit. If lack of informed consent leads to the patient's death, family members can bring a wrongful death lawsuit and seek damages, including compensation for loss of companionship and loss of support.

Source: Findlaw.com, "Understanding Informed Consent - A Primer," accessed Sept. 11, 2016

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