Medical Malpractice and Informed Consent
Before you undergo any medical procedure or treatment, the health care provider must obtain your permission before proceeding. They have a requirement to let you know the benefits and risks of the procedure, so you can make an informed decision about whether you approve. Let’s explore the purpose of informed consent and how failure to obtain informed consent is a form of medical malpractice:
As a patient, you have a legal and ethical right to make decisions about your own body and health. No doctor or health care provider may perform medical, surgical, or investigative treatment without your informed consent. Health care providers must inform the patient about the benefits, risks, and exact procedure or treatment such as:
• Physical examination (touching of the body)
• Drawing blood
• Injecting vaccines
• Radiation exposure
• Medications and drug interactions
Health care providers are obliged to provide good advice, but patients have the option of accepting or rejecting the advice. Doctors, nurses, dentists, paramedics, and other health care providers have a legal and ethical responsibility to inform patients – failing to do so may amount to medical malpractice.
Express or Implied Consent
Consent can either be express (verbal or written) or implied. In the case of risky procedures or procedures where intent may be misinterpreted (such a physical exam involving intimate areas of the body), health care providers are advised to obtain express consent.
In order for consent to be regarded as valid, the following conditions must apply:
• The patient consents voluntarily. The patient has freedom to consent to or reject any treatment option. Consent is provided of the patient’s own volition, with no coercion or duress.
• The patient has the mental capacity to provide consent. They must be capable of understanding the effects of the treatment (and risks of refusing treatment).
• The patient has been properly informed.
In Canada, health care providers should inform patients of the diagnosis. If the diagnosis is uncertain (for example, if it is likely condition A but could be condition B), this must be explained. Health care providers must explain the proposed treatments, explain the chances of success, and reveal the potential risks. They must explain alternative treatments (if available), and the risks of those alternatives. Finally, healthcare providers must also explain the risks of rejecting treatment.
If your health care provider(s) failed to obtain informed consent for any investigation or treatment, this might fall under the category of medical malpractice. If you are a victim of medical malpractice, a medical malpractice lawyer in Ottawa can help you determine if you have a viable case and get you the compensation you are owed.