Failure to Obtain Consent Can Constitute Medical Malpractice

Failure to Obtain Consent and Medical MalpracticeA medical malpractice lawsuit that caught the attention of the media this summer is a grim reminder of the importance of securing patient consent before surgical procedures. We might find it tedious to sign what feels like piles of paperwork for even the mildest of medical treatments, but after what happened to a new mother in Illinois, you’ll realize why it’s so important these procedures are followed.

She came in to deliver a baby and left partially sterilized

Lourdes Maldonado had a baby via emergency C-section at Mount Sinai Hospital in North Lawndale, Illinois in spring of 2021, reports Local Today news. After doctors delivered the baby, they began performing a tubal litigation on Maldonado. Per the article, “Doctors performed the sterilization surgery immediately…According to the lawsuit, Maldonado did not sign a consent form or verbally consent to the process.”

The medical team realized their mistake only after they completed the tubal litigation on one fallopian tube, according to court documents, and informed Maldonado when she work up. Local Today also reports, “Since the accidental surgery in May 2021, Maldonado has been unsuccessful in her attempts to conceive and expand her family…Although it is sometimes possible to reverse a tubal ligation, the procedure involves risks and is not always successful.”

Is lack of consent medical malpractice?

Maldonado is currently suing Mount Sinai Hospital for medical malpractice, citing she did not give consent for a tubal litigation.

This type of medical malpractice falls under surgical errors, as Maldonado’s physicians allegedly performed a procedure for which she had not given, and was unable to give, consent. Further, a tubal litigation is a somewhat permanent procedure – although reversible, doing so has its own risks and side effects and doesn’t guarantee success.

Nobody has the right to give you medical treatment without your consent, with the rare exception in life-saving situations. Informed consent is a patient right, as outlined by the American Medical Association:

Informed consent to medical treatment is fundamental in both ethics and law. Patients have the right to receive information and ask questions about recommended treatments so that they can make well-considered decisions about care. Successful communication in the patient-physician relationship fosters trust and supports shared decision making. The process of informed consent occurs when communication between a patient and physician results in the patient’s authorization or agreement to undergo a specific medical intervention.

The Association of American Medical Colleges also discusses informed consent, noting:

The underlying principle of consent isn’t particularly complicated: Patients have a right to make an informed, voluntary decision about their care. That means they need to know the nature, risks, and benefits of their options — which includes declining treatment.

Aaron Fink, MD, of the Emory University School of Medicine, adds, “Informed consent is not just the signing of a form. Informed consent is about a thorough process of communication between patient and provider.”

Informed consent and shared decision-making in Washington State

Getting more up close and local, the Washington Medical Commission (WMC) issued new guidance in 2022 regarding securing informed consent from patients. They note that the valid informed consent process has four important elements:

  1. The patient’s decision about the procedure must be independent and without influence from a physician, family member, friend, or other third party.
  2. Per the WMC, the doctor must share all information about the procedure that the patient would find important to make an informed decision, including “the nature, character, and anticipated results of the proposed test/treatment; material risks inherent to the proposed test or treatment; and alternative courses of action, including no action, and the benefits and risks of those alternatives.”
  3. The medical professional must also ensure their patient fully understands this information, including the “risks, benefits, and alternatives.” Further, “The practitioner has a duty to ensure that informed consent is obtained using a form of communication (e.g., language) that the patient understands.” The WMC suggests that doctors ask the patient to state back in their own words what they discussed in order to gauge their understanding.
  4. Physicians also must determine whether the patient has the mental ability to give consent. Patients who lack the capacity to make reasoned decisions also lack the capacity to give informed consent. The WMC states, “If a practitioner believes that a patient does not have the mental capacity necessary to make an informed decision, the practitioner may consider recommending the patient have a court-ordered guardian ad litem appointed before proceeding with any elective treatment.”

Something unique about Washington is that we’re the first state to codify shared decision-making as an alternative to informed consent. Under RCW 7.70.060, shared decision-making (SDM) allows a physician and their patient to engage in shared decisions about their health care.

In the SDM process, doctors and patients use tools called Patient Decision Aids (PDAs) that provide information about conditions and treatments. Per the Washington State Health Care Authority, “Research shows that use of these aids leads to increased knowledge, more accurate risk perception, and fewer patients remaining passive or undecided about their care.”

They also note that if a medical professional and patient engage in the SDM process with a certified PDA, informed consent is both given and implied.

Proving liability in a Kennewick medical malpractice case

If you think you’ve suffered harm due to a lack of informed consent, the court will look for the following elements:

  • The medical professional had a legal duty to secure your informed consent for the procedure
  • They failed to provide you with all the information a reasonable person would need to make an informed decision about the procedure or treatment
  • A reasonable person would have made a different decision based on the undisclosed information
  • An undisclosed risk or harmful event occurred
  • This procedure (or lack of procedure) was the cause of your harm

The medical malpractice attorneys at Telaré Law can investigate your claim, determine all responsible parties, and hold them liable for your injuries. We work to secure financial compensation for your medical expenses, wage loss, and pain and suffering. To schedule a consultation with a member of our experienced team of lawyers, call our offices in Kennewick or Richland or use our contact page. We also serve clients throughout Pasco, Walla Walla, and the Tri-Cities.