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A bit about medical malpractice claims based on failure to obtain informed consent

In our last post, we noted both the importance of informed consent in health care, as well as the fact that informed consent is not necessarily always sufficient. Under Michigan law, negligence can occur with informed consent when a physician fails to reasonably inform a patient of the risks of a treatment.

Failure to provide reasonable informed consent means failing to provide the patient adequate information, information that would be provided by a reasonable physician with similar training and experienced in the same or a similar community, before pursuing a given course of treatment. In cases where the plaintiff would have chosen not to pursue the procedure had he or she been provided reasonable informed consent, there may be a legal claim there worth pursuing. 

Like other claims in medical malpractice litigation, proving failure to provide reasonable informed consent may require the use of an expert witness, particularly in cases where the medical treatment or surgical procedure is too complicated for the average person to understand. Expert witnesses help the patient to establish the proper standard of care concerning the information and documentation process that should have been provided under the circumstances of the case.

Suing a physician for failure to provide informed consent is not always possible, both because there are certain circumstances where obtaining reasonable informed consent is not possible, and because it may not always be possible for a patient to adequately prove failure to obtain informed consent. In some cases, an informed consent claim may only be one part of the total picture of medical negligence, though.

Whenever a patient suffers harm from a physician, in whatever setting, it is imperative that the patient work with experienced legal counsel to seek appropriate compensation. This is true not only for claims based on failure to obtain informed consent, but for all medical malpractice claims.

Source:  Michigan Supreme Court, Model Civil Jury Instructions, 30.02

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