Surgical errors are often the subject of medical malpractice lawsuits. However, most surgical errors fall into the category of “known and accepted complications.” A known and accepted complication is one that can occur in the absence of negligence. Some examples include postoperative infection, bleeding, and damage to structures in the operative field. Although the field of surgery carries inherent risks, not all surgical complications are accepted risks of the procedure. This blog will discuss how the informed consent process affects the evaluation of a medical malpractice claim based on a surgical error.
All physicians are required to obtain informed consent before performing surgery or other medical procedures on a patient. Informed consent is obtained when the physician fully describes all material risks, benefits, and alternatives to the proposed surgical procedure to his or her patient. Often the process is given little consideration. The physician glosses over many complications, while the patient feels compelled to sign the informed consent despite having many questions about the nature of the surgical operation. It is not until the operation results in serious injury or wrongful death that the patient questions why important risks or alternative procedures were not discussed.
Signing for Full Informed Consent
Major hospital systems take advantage of the flawed nature of the informed consent process by preparing informed consent forms that state generically that the physician discussed all risks, benefits, and options and answered all of the patient’s questions. The form should instead delineate all of the risks and options that were disclosed before the patient signs it to verify that those risks and alternatives were in fact discussed. Instead, the patient signs the form, effectively giving carte blanche to the physician to argue that full disclosure was made. Most state laws validate this practice by granting a presumption that full informed consent was obtained when such a form is signed.
Lawsuits Caused by Error
The mere fact that an informed consent form is signed does not preclude a lawsuit for injuries or death caused by a surgical error. No patient consents to negligence. There is no such thing as a waiver of your right to sue for harm caused by medical negligence before, during, or after surgery. Any time there is a surgical error, a skilled medical malpractice attorney can investigate whether the surgery was indicated in the first place, whether safer options existed, whether the operative note describes the procedure being performed in a technically adequate manner, and whether there was a delay in recognizing or treating a complication after it arose.
If you have suffered a surgical complication resulting in severe personal injuries, permanent disability, or wrongful death of a loved one, you should contact an experienced lawyer, like an Ohio medical negligence lawyer from Mishkind Kulwicki Law Co, L.P.A., as soon as you can. Time limits may apply. Most medical malpractice law firms offer a free consultation, including a review of medical records.