Informed Consent: What Your Doctor Should Tell You Before Surgery
Undergoing surgery or a medical procedure is a concerning and trying time for most Americans. Not surprising, the most concerning is the uncertainty in the outcome of your surgery. The uncertainty may be due to potential risks or know complications associated with the surgery or the procedure that you may expose yourself to by undergoing the surgery. Under Florida Law, your doctor must explain the potential risks and benefits associated with the general procedure in order for you to be able to make an informed decision whether to go through with the surgery or medical procedure.
Under Florida’s Medical Consent Laws, doctors have a duty to inform a patient of the general understanding of the surgical or procedure, the medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed treatment or procedures.[1] Before a patient undergoes a surgery, medical staff will likely ask a patient to sign an informed consent form. Once signed, Courts will view this signed form as a presumption that you understood those risks.[2] It is extremely important to fully understand what you are consenting to before signing because it could have an impact on a future claim.
In our new world of electronic data, most common is for the doctor or nurse to place an I-Pad or electronic tablet in front of you asking you to sign or agree that you have been provided informed consent, you understand and agree to your surgery or procedure. Sometimes the doctor never comes in the room and never consults with you and you are pressured right before the surgery or procedure to sign the consent form. This should be mentally noted by you and you should be aware and ask questions should you not understand the risk and benefits associated with your surgery or procedure.
Importantly you should know, that a signed informed consent form doesn’t mean a patient is consenting or agreeing to a negligently performed surgery. It only means that the patient is agreeing that they understand the risks of the procedure and that the patient will undergo the procedure after being informed about the possible risks and benefits. A doctor has a legal and ethical obligation to give their patient material information necessary for the patient to make informed decisions about medical care.[3] Yet, doctors may leave out important information which may have caused a patient to lack the information necessary to make an informed decision, if so the signed informed consent then is ineffective and cannot be used as a defense for the healthcare provider.[4] Also, it should be noted that a doctor does not have a duty to inform you of all possible risks, but only must inform you of the material risks of undergoing a medical procedure.[5] In order to have a cause of action under Florida’s Informed Consent Laws, a patient, who is claiming that they were not fully and adequately informed by their doctor, must show that a reasonably prudent person would not have elected to go through with the surgery or operation if they had been adequately informed.[6]
In summary, you should ask as many questions and gather as much information before signing an informed consent form. If you believe that you or a loved one underwent a surgery that you would have not gone through had you known about a possible risk or complication, then you may be entitled to compensation under Florida’s Medical Consent Laws. Contact an attorney at Moody Law who can consult you in your time of need and explain your legal rights.
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[4] Unless a person gives consent to an operation knowing its dangers and the degree of the danger, the consent does not represent a choice and is ineffectual. See State v. Presidential Women's Center, 937 So. 2d 114 (Fla. 2006).
[6] See Florida Statute 766.103(3) 2019)
Case of Interest:
Santa Lucia v. LeVine, 198 So.3d 803 (Fla. 2nd DCA 2016)
