Lack of informed consent as basis for medical malpractice action

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Most of us would not consider ourselves experts in the field of medicine and instead choose to rely on the expertise of doctors and other medical professionals when making medical decisions.

When you meet with your doctor, your doctor may recommend certain tests, treatments, and procedures to address the symptoms you are experiencing.

As a licensed physician, your doctor is legally obligated to provide you with all the information necessary for you to make an informed decision about your health care.

Once the physician has provided you with the information required, they will have to obtain your informed consent before beginning a medical procedure.

Doctors in Florida are generally required to:

  • Determine the patient’s ability to understand the information presented and communicate in a way they can understand.
  • Provide relevant information regarding:
    • Your diagnosis.
    • The purpose of the recommended treatment/procedure.
    • The risks and benefits of the recommended treatment/procedure.
    • Possible alternatives.
    • The risks of failing to treat the condition or delaying treatment.
  • Document the patient’s informed consent by including it in their medical records. While written consent is not generally required, if the patient signs a written consent form, the form should be placed in their records.

Exceptions to informed consent

If the patient is incapacitated and unable to make a decision or may require immediate treatment. In such cases, a physician may begin treatment even if the patient has not given their informed consent.

However, physicians are required to provide the patient and/or their surrogate of the treatment administered and seek consent for ongoing treatment as soon as possible.

If your doctor performed a procedure without your consent or failed to provide all the necessary information before obtaining your consent, and you would not have agreed to treatment if you had known this additional information, you may have a valid claim for medical malpractice.

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