Healthcare Reform

4. Will including a documented discussion of a risk or complication protect me from a lawsuit if that problem actually then occurs, since the patient agreed to risk it?

No

Many doctors misinterpret a patient being informed of a potential problem and still electing to go ahead as an “assumption of the risk” situation that would then bar that patient from recovering for an injury incurred as a result. They believe the consent to be a “get out of being sued card”.

The actual fact is that just because something is a known complication or a possibility that was discussed, and which the patient indicated a willingness to risk in hopes of a greater benefit, does not mean that if that problem occurs that it was not the result of negligence. The fact that the patient was aware that it might happen is irrelevant because, in consenting, the patient accepted that sometimes even a perfectly done procedure may have a complication but did not thereby also consent to having the procedure performed negligently, causing the same complication.

Therefore, if the patient-turned-plaintiff can prove that the problem occurred as a result of a breach of the standard of care, that he or she knew that it might happen if the procedure were actually done perfectly does not restrict them from suing for damages that resulted from it.

By Dr. JD, a plaintiff’s attorney, practicing in the Northeast

Consenting a patient is really the entering into of a contractual agreement that will govern the medical care that you will engage in and, as in all contracts, that process requires a meeting of the minds to be valid.

The document called a “consent” is, like a written contract, merely a legal formality that memorializes the end result of that process.

The only role it really plays in a medical malpractice action is when it is not there at all or looks so deficient on its face that it raises serious questions about the propriety of the care ( e.g.; the physician is not named, suggesting that there may have been “ghost surgery”, or the patient’s signature is a scrawl that suggests that they may not have been competent when they signed, or the document itself is post-dated, suggesting that it was only filled-in after the fact).

In fact, since a malpractice claim in which a patient is alleging “lack of informed consent” is actually the patient saying “I did not know something critical to my decision about my care because you did not tell me, and I would not have made the choice about my care that led to my present problem if you had told me what I needed to know”, a signed piece of legal boilerplate is no bar at all to that claim proceeding. At most, it creates a rebuttable presumption that the patient agreed as an informed person, but that simply moves the case forward to the presentation of evidence to provide that rebuttal.

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Most doctors have taken care of patients who were medically impacted by their illegal act. Some of these patients actually have third party insurance. I know, you’re skeptical. OK, how about a rock star who overdoses? Maybe he’s not come to your ER. But, he came to someone’s ER.

Dzokhar Tsarneav, another criminal, was transported to a hospital to be treated – probably at great cost – for injuries sustained in a gun battle with the police. This issue brings into focus the problems physicians face in getting an insurer to cover patients for what they brought on themselves through illegal acts.

The basic rule of insurance is carriers will not cover an insured for intentional illegal acts. Insurers will cover patients for harm resulting from their illegal act IF that crime was not intended. Therefore, if a driver is injured while trying to run down his neighbor that driver will not be covered. But if the driver drove while drunk – itself an illegal act but without intention to commit a crime – he would be covered for injuries he sustained when he crashes into a lamppost.

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