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Does Informed Consent Mean I Can’t Sue for Medical Malpractice?

The Law Office of Dan N. Fiorito III  March 15, 2024

Woman signing an informed consentInformed consent is a pivotal aspect of medical procedures, serving as the foundation of trust and communication between patients and healthcare providers. Signing an informed consent form before undergoing medical treatment implies you have been made aware of the potential risks and benefits associated with the procedure and any alternatives to the proposed treatment. However, it does not strip away your rights to seek recourse through a lawsuit if malpractice occurs. 

Medical malpractice happens when a healthcare professional deviates from the standard of care, which leads to patient harm. Informed consent does not absolve healthcare providers from providing a reasonable standard of care. Instead, informed consent serves to protect both parties involved in the medical procedure. 

If you or a loved one has experienced medical malpractice, reach out to my firm, The Law Office of Dan N. Fiorito III. Located in Seattle, Washington, I proudly serve clients throughout all of Western Washington, including the Puget Sound Area, Bellevue, Tacoma, and Everett. 

Understanding Informed Consent

Understanding the significance of consent is essential as it upholds patient autonomy and ensures a mutual understanding between the patient and healthcare provider. Consent is essentially the patient's agreement to proceed with a certain treatment proposed by a medical professional. There are primarily two types of consent in medical practice: expressed consent and informed consent.  

Expressed vs. Informed Consent

While closely related, the concepts of expressed consent and informed consent play distinct roles. Expressed consent occurs when a patient explicitly communicates their agreement to undergo a particular medical treatment or procedure. This consent can be given verbally or in writing, directly stating the patient’s willingness to proceed with treatment. For example, saying "yes" to an immunization or signing a consent form for surgery are acts of expressed consent. 

Informed consent emphasizes the patient's understanding of the procedure, including its potential risks, benefits, and available alternatives. Informed consent is not just an agreement to proceed; it is an informed agreement, which requires a thorough explanation from the healthcare provider about the procedure and its implications. It is based on the idea that patients should only make healthcare decisions when they are fully informed. 

When Isn't Informed Consent Required?

Informed consent is required for all medical treatments that entail significant risks, surgical procedures, and participation in clinical trials. By giving informed consent, a patient affirms they have received comprehensive information about their treatment options and have had the opportunity to ask questions and discuss concerns with their healthcare provider. 

However, there are specific circumstances where informed consent is not required:  

  • If a patient is incapacitated and incapable of giving consent due to their condition, and urgent medical intervention is required to prevent serious harm or save their life, healthcare providers can proceed with treatments without obtaining informed consent. 

  • Minor treatments that do not involve significant risk or major medical procedures may not require informed consent, for example, non-invasive diagnostic tests and routine physical examinations.  

  • Situations where a patient is mentally incapacitated or otherwise legally unable to make healthcare decisions may require consent from a guardian or a legally authorized representative. 

Who Can Give Consent?

Generally, informed consent must be given by the patient. However, depending on the circumstances, certain individuals, known as legally authorized representatives (LARs), may be able to provide consent on the patient's behalf.  

In Washington State, LARs can include a healthcare power of attorney or a legal guardian appointed by the court for adults who lack the capacity to make informed decisions or are otherwise unable to consent due to physical or mental conditions. For minors, parents or legal guardians may give consent on their behalf. 

Can I Sue for Medical Malpractice If I Signed an Informed Consent Form?

The short answer is yes. Informed consent and medical malpractice are distinct entities. While informed consent deals with the adequacy of information provided and the patient's agreement to proceed, medical malpractice focuses on the standard of care delivered by the healthcare provider.  

It's important to note that experiencing an adverse outcome to a procedure by itself does not constitute malpractice; the patient must prove that the provider's negligence directly caused them harm. If it can be demonstrated that the healthcare provider' failed to meet the expected standard of care, resulting in harm or injury, then the patient retains the right to pursue legal action through a medical malpractice lawsuit, even if they had signed an informed consent form. 

Reasons to Sue for Medical Malpractice

There are many reasons a patient may choose to pursue legal action for medical malpractice despite having signed an informed consent form. These include: 

  • Misdiagnosis: Providing an incorrect diagnosis that leads to improper treatment or no treatment at all, resulting in harm to the patient. 

  • Surgical Errors: Mistakes made during surgery, such as operating on the wrong body part, leaving surgical instruments inside the patient's body, or performing the incorrect procedure. 

  • Medication Errors: Prescribing the wrong medication or dosage, resulting in adverse effects or failing to treat the patient's condition. 

  • Anesthesia Errors: Administering too much, too little, or the wrong type of anesthesia, leading to serious complications or death. 

  • Birth Injuries: Errors made during childbirth that harm either the mother or the newborn, such as failing to monitor fetal distress or improper use of birthing tools. 

  • Lack of Informed Consent: If a patient can prove they were not adequately informed about the potential risks of a procedure, or that their consent was obtained through coercion or deception, they may have grounds for a lawsuit. 

How to Sue for Medical Malpractice

For victims of medical malpractice in Washington State, there are specific steps and timelines to filing a medical malpractice lawsuit: 

  1. Seek Professional Legal Consultation: Consult an experienced medical malpractice attorney as soon as you suspect malpractice has occurred. An attorney can help you understand the strength of your case, the steps involved, and whether it's in your best interest to proceed. 

  2. Notice of Intent to Sue: Although not mandatory in Washington State, sending a notice of intent to sue to the healthcare provider before filing a lawsuit can sometimes facilitate an out-of-court settlement. This notice should detail the allegations and the harm suffered. 

  3. Statute of Limitations: In Washington, you generally have three years from the date of the alleged negligent act or one year after the injury was or should have been discovered to file a lawsuit. However, you cannot initiate a claim more than eight years after the act of malpractice, regardless of when it was discovered.  

  4. Mandatory Mediation: Before going to trial, parties in a medical malpractice case are required to go through mediation. This step involves a neutral third party who helps both sides try to reach a settlement. It's intended to resolve disputes efficiently without the need for a court trial. 

  5. Obtaining a Certificate of Merit: Washington requires plaintiffs in a medical malpractice lawsuit to file a certificate of merit from a qualified medical expert. Based on the expert's assessment, this certificate should attest that there are reasonable grounds to believe the healthcare provider's act or omission constituted malpractice. 

  6. Filing the Lawsuit: With the help of your attorney, file a complaint against the healthcare provider detailing your accusations, the damages or injuries you sustained, and the compensation sought. This document formally begins the lawsuit process. 

  7. Discovery Phase: After filing the lawsuit, both parties engage in the discovery phase, where they exchange information, gather evidence, and take depositions.  

  8. Trial: If the case is not resolved through mediation or settlement, it will proceed to trial. During the trial, both sides present evidence and arguments to a judge or jury, which then makes a final decision on the case. 

  9. Appeal Process: If the outcome of the trial is unfavorable, you have the option to appeal the decision. An appeal must be filed within 30 days after the trial's conclusion. 

A medical malpractice lawsuit involves many intricate steps and requires strict adherence to legal protocols and timelines. Working with an experienced attorney can significantly enhance your understanding of the process and increase your chances of achieving a favorable outcome. 

Knowledgeable Legal Counsel

Understanding your rights regarding informed consent and medical malpractice can be empowering. If you or a loved one has been a victim of medical malpractice, regardless of informed consent, reach out to an experienced medical malpractice attorney from The Law Office of Dan N. Fiorito III. My firm can assess the specifics of your case and advocate for the compensation you deserve.