Surgical consent is defined as giving your physician permission to perform surgery and may not always be in written form. Without this consent given for surgery, it is considered a criminal offense. Informed consent, delves deeper than general consent as it also includes being fully informed of all possible consequences that could occur during the procedure. A physician needs both types of consent to be able to perform any surgery.
There are times when your consent for surgery is revocable even after surgery. There are certain situations where the court could consider the consent may be suspect. These include:
- Mental Illness
- Mental disability
- In labor
- Under the influence of substances
- In stress or pain at the time of consent
- Being a minor
These are all instances where consent may be legally suspect as consent may not have been completely voluntary. In these situations, where the doctor should have realized these factors as a barrier to consent; the physician could be liable for negligence.
Surgery without any consent usually happens one of two ways:
- During a routine surgical procedure to which you DID consent, your physician discovers a new problem and uses surgery to rectify the issue. An example of this would be, during a routine surgery, a physician discovers growths in your uterus and then performs an immediate hysterectomy. Even though the doctor may believe he is preventing further problems, general practice dictates that a physician may only perform additional surgeries if it is an emergency life-threatening situation. The physician would only be allowed to remove the uterus if it was an immediate threat to your life.
- The other type of surgery without consent is when a physician specifically defies your wishes and performs a medically necessary surgery. For example, those of certain religious beliefs believe getting blood from another is a sin and tells the doctors to not give him a transfusion under any circumstance. There are complications during the procedure and the physician gives him a transfusion to save his life. Even though it was an emergency, the hospital and physician are still liable for not obtaining consent for the operation.
Almost every state has limits to how much a patient can receive in medical malpractice cases. There is a very big distinction in these cases between “general consent” and “informed consent”. If a physician has failed to describe in an adequate fashion, the risks associated with a surgical procedure then it is considered malpractice. However, when basic consent has not been obtained, it is not about negligence. This now becomes physical trespass and possible battery, so state limits may NOT apply. This can be the difference between recovering thousands or hundreds of thousands, making it an extremely important distinction.
If you or a loved one has had the misfortune of having a surgery that you may not have consented to, that you expressly did not want, or performed without your surgeon providing you with all the risks of the performed surgery; you may be entitled to financial compensation for the damages incurred by the performance of unnecessary surgery. Call the Sweeney Law Firm and let our experts review the facts. You may have a medical malpractice case. If we decide to accept your case, we work on a contingency fee basis, meaning there is no fee for representation unless there is a settlement or fund recovery made on your behalf.