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Lack of informed consent results in medical malpractice

New York physicians have a responsibility to treat their patients according to the standards of their practice. Unfortunately, some doctors fail to adhere to these standards and, as a result, can be found guilty of medical negligence. One of the ways doctors can mishandle their patients' care is by treating them without consent.

Informed consent laws require that patients receive information about their condition and possible treatment options before undergoing any treatment. Doctors must discuss the risks associated with each treatment and the patient's prognosis. Doctors must explain the information in a way that the patient can clearly understand. Once everything has been explained, the patient can then consent to treatment.

Patients that are incompetent cannot legally give informed consent. This means that patients who are mentally ill or are otherwise impaired cannot legally agree to any treatments or surgeries. Parents or guardians may give consent for the medical care of their minor children.

Medical malpractice suits often stem from situations where doctors perform unauthorized procedures on their patients. A doctor who fails to obtain informed consent in a non-emergency situation may be charged both civilly and criminally. In a civil case, a patient would have to prove that the doctor failed to fully explain the treatment or the risks involved. The patient must also prove that he would not have agreed to the procedure had he known all the information. Lastly, the patient must show that he was injured as a result of the procedure. If a patient can establish medical malpractice, they will likely be able to recover damages from the physician to cover medical expenses and other costs resulting from the injury.

Source: FindLaw, "Informed Consent and Unauthorized Treatment," accessed on Aug. 23, 2016

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Michael J. Gaffney, Attorney at Law
1164 Victory Blvd.
Staten Island, NY 10301

Phone: 347-286-1937
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