Court Discusses Informed Consent and What Doctors Must Do To Obtain Valid Consent Prior to Performing a Medical Procedure

Medical malpractice cases can be brought under a number of different theories. For example, surgical errors and misdiagnoses are two common types of Indiana medical malpractice cases. Another theory of liability under the medical malpractice umbrella is called medical battery.

Operating Room ErrorMedical battery is based on the idea that a doctor can only perform a procedure on a patient who consents to that procedure. In the eyes of the law, a surgeon who performs a procedure without a patient’s consent is no different from a person who attacks a victim with a knife against their will. Thus, for any medical procedure, doctors must obtain informed consent.

The term “informed consent” can be a tricky one and often requires more than the doctor asking the patient if they are aware of the risks and then proceeding with the procedure. In most situations, doctors must first educate the patient on what their current ailment is, how the surgery is meant to fix it, how it will be performed, and what the likelihood of complications will be. A recent case out of Oklahoma explains that the doctor should also tell the patient whether any non-doctor assistants will be helping the doctor.

The Facts of the Case

The plaintiff was scheduled to have a total laparoscopic hysterectomy performed by the defendant doctor. The doctor provided the plaintiff with a medical release waiver that authorized the doctor and “whomever he/she (they) may designate as his/her assistants, to perform the following operative or diagnostic procedure(s): total laparoscopic hysterectomy.” However, the area on the waiver form designated for the doctor to list any assistants was left blank.

In anticipation of the surgery, the doctor enlisted the help of a registered nurse with whom she had worked many times. The two performed the surgery together, with the nurse performing significant portions of the surgery. During the surgery, the plaintiff’s ureter was severed. It was not clear whether it was the doctor or the nurse-assistant who severed the ureter. The plaintiff filed a medical battery claim against the doctor, claiming that the doctor operated on her without her informed consent. The plaintiff claimed that by not disclosing that a non-doctor assistant would be performing significant portions of the surgery, any consent she did give was uninformed.

The court agreed with the plaintiff, reversing a lower court that had granted summary judgment in favor of the defendant doctor. The court held that a patient has the right to make an informed and intelligent choice about their own medical care. The fact that a non-doctor assistant is going to perform significant portions of the surgery may increase the risks involved, the court explained, and the plaintiff should be made aware of who is involved in performing the surgery.

Have You Been a Victim of Medical Malpractice?

If you or a loved one has recently been provided inadequate medical care by a doctor, nurse, or other medical professional, you may be entitled to monetary compensation. The dedicated Indiana medical malpractice attorneys at the law firm of Parr Richey Frandsen Patterson Kruse have extensive experience representing clients in a wide range of personal injury cases, including medical malpractice cases. Call 888-532-7766 to schedule a free consultation today. We represent clients in Indianapolis, Lebanon, and across Indiana.

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