Geoff McDonald & Associates wins the biggest settlement for Virginia in 2020 for $38.2 Million. Click for details.

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: 866-369-9051.

FREE CONSULTATION

No Fees Unless We Win





    If I Am Injured While My Spouse Is Driving, Can I Sue My Spouse?

    Legally, nothing prevents you from taking legal action in a spouse-involved car accident. There is no relevant spousal immunity provision in Virginia. However, there are some obvious emotional issues to consider in these cases. There are some additional legal issues...

    Can I sue my landlord if I’m injured at home?

    In Virginia, landlords have a legal duty to ensure that their tenants are reasonably safe. This duty applies to private areas, like apartment units, as well as swimming pools, stairwells, parking lots, and other common areas. Falls, dog bites, and swimming pool...

    Who May Be at Fault in a Construction Accident?

    They may seem simple on the onset—a fall from a scaffold or faulty machinery causing injury—but construction accidents can be quite complex. In some cases, you may have to file for workers’ compensation. In other cases, you may have to make a third-party claim to seek...

    What If I Was Partially at Fault for My Accident?

    Until it’s them or their loved ones involved in the accident, most people don’t consider how state laws and regulations affect their pursuit of financial recovery. After all, what the average American knows about personal injury claims and lawsuits usually stems from...

    Our Case Results

    $4,700,000
    Industrial Plant Accident

    Attorneys for the Plaintiff: Jeffrey A. Breit and Justin M. Sheldon Our client was killed in an industrial accident when an unauthorized worker was operating an overhead crane and pinned our client between…

    $1,750,000
    Rear-End Crash

    Our client suffered a traumatic brain injury, facial trauma, a dislocated hip and severe abdominal trauma when she was rear-ended at a traffic light by a tractor trailer. Suit was commenced shortly after…

    $1,250,000
    Assault of Log Truck Driver

    Attorneys for the Plaintiff: Geoffrey R. McDonald, Frank H. Hupfl, Justin M. Sheldon.
    Our client suffered a traumatic brain injury after being assaulted and knocked to the ground while fueling his logging…

    $860,000
    Drunk Driving Crash

    Our client suffered neck/head trauma and a broken wrist after his vehicle was struck by a drunk driver while he was stopped at a traffic light. Upon rejection of a settlement offer of $325,000, our litigation…

    $700,000
    Rear-End Collision

    Attorneys for the Plaintiff: Justin M. Sheldon and Geoff R. McDonald, Richmond
    GMA’s client was injured as a result of a rear-end collision in the greater Richmond area. The crash occurred a little after…

    Client Reviews

    Cheryl and Rich were wonderful and patient with me throughout the case. All of my questions were answered. They really helped me through this tough time and made sure to let me know what was going on. I really thank Geoff…

    Troy Saxby

    My experience with GMA staff was first rate. They always represented in a professional way and made sure I had everything as far as paperwork. Kara and Theo made sure to answer all my questions, was always available and so…

    Shirley Brown

    Geoff McDonald & Associates is the team that you want on the field if you’re in need of top notch legal defense! Mr. Taj Henley demonstrated true customer service skills and his expertise made me feel comfortable throughout the…

    Julian Reeves

    Geoff McDonald & Associates: Thank you Taj Henley for all of your hard work and dedication! Very expeditious in my case and I was very satisfied with my settlement. Will recommend to all my friends and family!

    Shareema Williams

    Geoff is number one in my book and I especially appreciate the support of Mr Henley

    Ebony Conwell

    I was so pleased with the knowledge and support from Mr. Taj Henley

    Kideem Frierson

    Thank you Geoff McDonald &Associates. A special thank you to Mr. Taj Henley

    Denise Conwell

    Mr. Taj Henley displays exceptional professionalism for Geoff McDonald & Associates, along with commendable communication skills and customer service. By his work ethic and commitment to the people he serves his value to any…

    Justin Fitzgerald