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Part of a doctor’s duty in treating his or her patients involves educating the patient.  A close relative of mine just retired from the long-time practice of medicine in Alabama, and he has described to me the extent to which he would go to get informed consent before proceeding with a proposed method of treatment out of respect for his patients and their freedom of choice. If only all doctors were so conscientious….

A doctor cannot perform any treatment on direct behalf of the patient, or on the patient, without the clear, unequivocal informed consent of the patient. “Informed consent” is described by the American Medical Association as “a process of communication between a patient and physician that results in the patient’s authorization or agreement to undergo specific medical treatment.” That communication should involve details of the diagnosis, the proposed treatment, the risks and benefits of the proposed treatment, alternative treatments and their risks and benefits, and the risks and benefits of delaying or forgoing all treatment.

Patients’ informed consent also involves doctors answering patients’ questions to help the patient make an informed decision about whether to undergo or refuse treatment.

In the medical context, it is legally well established that everyone of sufficient age and soundness of mind has the right to decide what is to be done to his or her body, even when survival is implicated. Treatment with no consent at all, actual or implied, treatment substantially different from that to which the patient consented, or unauthorized substitution of one treater for another come[s] within the definition of battery, especially when involving invasive procedures. That an unpermitted medical treatment may be lifesaving or curative, except in situations where consent would be implied…, does not excuse battery.

In Alabama, if it causes injury, failing to obtain informed consent is negligent and considered medical malpractice. Medical malpractice is the failure of a health care provider to follow the appropriate and applicable standard of care governing their profession, causing harm or death. The injured party must prove by expert testimony what the standard of care is an how it was breached by the medical provider. He or she must also prove causation, or that the injury would not have occurred but for the harmful conduct of the medical provider.  These claimants must meet a higher burden of proof in medical malpractices cases than in most, if not all, other civil litigation in Alabama: the elements of the claim must be proved by “substantial evidence.”

Despite the direct connection between medical malpractice claims and a physician’s failure to obtain informed consent, there are many and high hurdles to recovery in a medical malpractice action in Alabama, generally speaking:

Alabama laws and the complexity of medical care make medical malpractice cases difficult [in Alabama. V]ictims don’t understand all the hurdles that have to be cleared by a lawyer before he or she can say whether or not a viable medical malpractice claim exists.

These hurdles include the preliminary investigation, high costs of materials and experts, protracted motion practice, and conservative juries that are easily persuaded of a claimant’s alleged malingering due to “tort reform” tactics used in jury selection. The high cost of prosecuting medical malpractice actions, alone, is enough to prevent a great majority of lawyers from being able to accept medical malpractice cases, thereby allowing most malpractice conduct to go unpublished and unpunished.

One Comment

  1. Gravatar for Gene Rosov

    100% agree. 10 years ago, I created a telephone-based informed consent program current being used by dozens of clinicians and a major NJ hospital. It subtends the problem of clinician TIME by offering comprehensive information in a comfortable, zero-pressure environment (via the phone) for patients, family and relatives. It produces an interactive report, which is sent to the doctor, and requires discussion of questioned items and complete coverage of any issues or worries - and signatures by both doctor and patient. It informs patients, provides clarity, saves a great deal of time for both parties, and avoids disappointment and the potential for ensuing lawsuits. Write me for more information.

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