Attorneys Who Refuse To Back Down In The Face Of A Challenge

Informed consent is more than a signature

As a medical professional, you understand that communicating with your patients is a top priority. In fact, your patients come to you because they want to know. They may be confused or worried, and they trust you for answers. Therefore, it is critical that you develop the skills to listen to your patients, answer their questions and provide the information they need to make the best decisions for their health and well-being.

At no time may this be more important than when your patient is preparing for a surgical procedure. Surgery can be a frightening experience for a patient, and even the most routine procedure has its risks and uncertainties. This is why it is critical that you are able to communicate those risks to your patient and obtain consent, verifying that your patient is fully aware of the possibilities. However, even if you obtain that consent, you may still face a malpractice lawsuit.

Consent gone wrong

More than half of surveyed physicians say they have been the defendant in a medical malpractice lawsuit, and nearly half have multiple lawsuits in their histories. While having your patients sign informed consent documents may not prevent them from filing lawsuits, a carefully obtained signature may improve your chances of success in court. Informed consent is not just getting a signature. It involves attention to specific details, such as the following:

  • An accurate and adequate description of the procedure and any known risks
  • The date and time when the patient signed the document
  • The signature of a witnessing health care professional
  • Your signature as the doctor performing the procedure

Your patient must be competent to understand your explanation of the procedure and of sound mind to grant consent. Otherwise, the signature on the paper will probably not protect you. Additionally, a patient who feels pressured to sign, who does not have enough time to consider the consequences or who believes they have no alternative may have a valid argument for not offering informed consent. This could place you at a disadvantage.

It is also important that you make no alterations or modifications to the standard language on the form without consulting your compliance team. What may seem like a small change in the wording may open a floodgate of legal issues, leaving you and your career open to risk. Finally, storing the signed document in a protected file, perhaps using electronic forms that you can store online, may seem obvious, but surprisingly, many doctors face medical malpractice claims when informed consent documents go missing.