John was having significant belly pain. He was doubled over. He couldn't go to the bathroom, thinking it was gas.
His pain was getting worse. Still he thought it was gas pain.
Finally, he decided it was wise to go to the emergency room. He was going to drive himself but realized that would be impossible.
An ambulance was called.
Twenty minutes later, he's being examined by a doctor who tells him he needs surgery. The doctor leaves and is replaced by a nurse who thrusts five pieces of paper from a clipboard in front of John.
Remember, John is in pain. His eyes are closed mostly. He is praying for the pain to go away.
Now, he's being asked to sign some forms.
"You need to sign these forms if you're going to have surgery," the nurse tells him.
Without reading a word, he grabs a pen and miserably scribbles his name five different times. Looking back at his signature days from now, he will never recognize that this was his signature.
Surgery goes well, but John develops complications following surgery that lands him back in the hospital for another three weeks.
John picks up the phone to ask if he has a case of 'lack of informed consent'.
First, we have to answer what is "Informed Consent."
It is when the patient is fully informed about the risks, benefits and alternatives to the procedure that is being recommended. Why is this important? It is critical for the patient to be informed about his options and the risks of proceeding compared to any alternatives that might be available.
What happens if you have not been given all the risks, benefits and alternatives and suffer injury during or after the surgery? Then, you would have made a decision to proceed without have the full information to make an educated decision about this particular surgery. If you don't have enough information to make an informed decision, then you're at a significant disadvantage and are making a decision without enough information.
This type of claim often resorts to a "He said," "She said," situation.
Here's what I mean.
"I'm telling you, the doctor did not tell me there were any risks to have this surgery. I do not even remember signing the consent form, which was hurriedly done in the hospital and by a nurse, not the doctor."
The doctor, on the other hand, says "What are you talking about? Of course I discussed the risks, benefits and alternatives with her. In fact, I spent 25  minutes talking to her about her options, her husband was in the room with us and they asked lots of good questions before agreeing to the surgery."
You simply don't know. If that's the only basis for your claim, you've got a very tough road ahead of you. It all depends on who is more credible. In NY, two thirds of all medical negligence trials are won by doctors and hospitals. Juries tend to believe that the doctor gave the patient full informed consent. There are instances where this is not the case.
However, if this is the only claim you have, you may find that an experienced trial attorney will have difficulty accepting your case. Leaving a verdict up to six members of the community just on the basis of "The doctor didn't tell me that," and "Yes, I did tell her that," is extremely challenging.
The next time a surgical procedure is recommended, READ the forms or have someone on your behalf read them and ask questions about the risks, benefits and alternatives before signing.
Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer
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Debbie 03/10/2012 09:41 AM
I was rushed through informed consent by nurse who said I wouldn't get treatment if I didn't sign and I was in agony. However, I suffered a severe injury that wasn't listed in the informed consent. I wouldn't have signed if I knew the consequences.
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Gerry Oginski 03/10/2012 10:11 AM
That's exactly the problem. You're in agony. You don't have the time and luxury to think about all the other options. If you don't sign, you won't get rid of your pain. If you do sign, you run the risk of agreeing to a procedure that you may not have been fully informed about the risks.
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Shawn Williams 07/18/2013 04:54 AM
Surgical malpractice is always a ‘he said/she said’ case and it always ends up ugly in the courtroom. Forbes recently released an article about things you should know about medical malpractice, and I think everyone should know of these things before undergoing a surgery, no matter how small the procedure is. Due diligence on your part in knowing your condition and the surgery is a ‘must’ when you are seeking medical attention. Be proactive in seeking information and letting your doctor know about it. Also, get such documented. I know of one case wherein a young lady underwent dental surgery, but the surgery went for the worst. However, she documented everything from her options, medical condition to the prior consultation and supposedly outcome that the doctor told her. In the end, the settlement out of court benefited both, especially that the doctor did not lose his license because of it.
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