What is informed consent and how can it affect a medical malpractice case?

Apr 22, 2021 | Personal Injury

Most doctors will not perform surgery until the patient or the patient’s authorized representative signs a consent form. Contrary to the popular myth, these consent forms do not shield negligent doctors from liability. A consent form simply makes the assumption of the risk defense easier to prove. As outlined below, this defense can be difficult to prove in court.


If a Richmond medical malpractice lawyer builds a strong, evidence-based claim, it can withstand insurance company defenses, like the assumption of the risk. This approach usually ensures maximum compensation for these injury victims.

What Is Duty of Care?


All negligence claims begin with the appropriate duty of care. Doctors have a fiduciary duty toward their patients. That’s the highest responsibility in Virginia law. Doctors must set aside all other concerns, especially making money, and only do what’s best for their patients.


Misdiagnosis is a good example of how this duty works. Nationwide, doctors misdiagnose about 20 percent of their patients, mostly because of a lack of information. In high school, 80 percent is not only a passing grade. Depending on the course, it might be one of the highest grades in the class. But in the doctor-patient context, 80 percent is a failing grade. These doctors are typically negligent.

Lack of Care


Frequently, the standard of care comes into play. In terms of surgical procedures, the standard of care usually requires doctors to use the most conservative method possible that could produce the desired results. During the procedure, doctors must adhere to certain standards. 


For example, anesthesiologists (who deliver and monitor anesthesia) must thoroughly review cases, use the appropriate amount and type of medication, and remain on close standby in case of emergencies. Any lapse in any area is usually negligence whether or not the patient signed a waiver.


The high duty of care is paramount. As the old saying goes, the bigger they are, the harder they fall. So, the higher the duty of care goes, the easier it is to establish a lack of care.


Victim/plaintiffs must establish negligence by a preponderance of the evidence (more likely than not). An expert witness testifies as to the standard of care. Then, this witness, or another witness who has reviewed the facts of the case, testifies that the doctor’s conduct fell below that standard of care.

The Assumption of the Risk Defense


This defense is very common in medical malpractice and premises liability claims. “Premises liability” includes things like falls and dog bites. The defense excuses a negligence claim if the victim, (1) voluntarily assumed a risk and (2) that risk was known to the victim at the time of the assumption.


Initially, many liability waivers are not voluntary agreements. Instead, they are take-it-or-leave-it contracts of adhesion. Regarding medical waivers, patients usually have no chance to negotiate the terms. Even if they had this opportunity, they cannot possibly match a doctor’s negotiating power. Furthermore, the doctor usually will not perform the procedure unless the patient signs the waiver, no matter how badly the patient needs attention.


Additionally, the risk which caused an injury is not always a known risk. Bacterial infections are a good example. Many surgical waivers do not mention these risks, as they are not directly related to the procedure. As a result, the doctor is usually responsible for such injuries.


Speaking of infections, injuries that defective products cause are usually not medical negligence. Instead, the manufacturer is usually strictly liable for such wounds. Medical malpractice defenses such as assumption of the risk are inapplicable.


The Bair Hugger Warming Blanket is a good example. This blanket included a vacuum pump that sucked air from near the floor and uses it to warm the patient’s blanket. The problem is that the air near the floor usually contained bacteria. The heat allowed bacteria to multiply. As a result, open wounds often became seriously infected.


The manufacturer of this product was responsible for the infections sustained by its users. No doctor treating a user would have been held negligent because there was no breach of the duty of care by the doctor

You Signed, But You May Still Have a Case – Call Today


If you sign a surgical consent form, you may still be eligible for compensation. For a free consultation with an experienced personal injury attorney in Richmond, contact Geoff McDonald & Associates, P.C. Lawyers can connect victims with doctors, even if they have no insurance or money.


Geoff McDonald and Associates: 804-888-8888.


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