Medical Malpractice Lawyer Serving Vermont

Lack of informed consent for some medical treatment, alone or in conjunction with other types of medical malpractice, may form the basis for a medical malpractice claim. Some people believe that if they have signed a written consent form, it prevents them from making a claim based on informed consent. However, this is not true. If you have suffered a significant injury because you were not given all of the necessary and proper information, even if you have signed a consent form, an experienced medical malpractice attorney should be consulted as soon as possible.

Medical malpractice claims based on lack of informed consent are controlled by the language of V.S.A. {1909 titled: Limitation of medical malpractice action based on lack of informed consent.

The text of the statute provides as follows:

(a) For the purpose of this section, “lack of informed consent” means:

(1) the failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation; or

(2) the failure to disclose the information required by subsection (d) of this section.

(b) The right of action to recover for medical malpractice based on a lack of informed consent shall not apply in the case of an emergency.

(c) It shall be a defense to any action for medical malpractice based upon an alleged failure to obtain such informed consent that:

(1) the risk not disclosed is too commonly known to require disclosure, and the risk is not substantial;

(2) the patient assured the medical practitioner he or she would undergo the treatment, procedure, or diagnosis regardless of the risk involved, or the patient indicated to the medical practitioner that he or she did not want to be informed of the matters to which he or she would be entitled to be informed;

(3) consent by or on behalf of the patient was not reasonably possible; or

(4) a reasonably prudent person in the patient’s position would have undergone the treatment or diagnosis if he or she had been fully informed.

(d) A patient shall be entitled to a reasonable answer to any specific question about foreseeable risks and benefits, and a medical practitioner shall not withhold any requested information. “

Oftentimes, a health care provider will have the patient sign a consent form while they are medicated and not able to appreciate what they are agreeing to. Sometimes, a surgeon or other provider will not have previously even met the patient and will not have provided the information that is contained in the consent form. In addition, sometimes there is important information that should have been provided to the patient that was not in the signed consent form and was not otherwise provided to the patient. In all of these cases, the fact that a patient has signed a consent form does not prevent them from bringing a medical malpractice claim.

David has successfully handled medical malpractice cases where the issue was a lack of informed consent.