Did You Truly Give Informed Consent? A Case Study on Medical Negligence and Patient Rights
What is Informed Consent?
Prior to undergoing a procedure or treatment, it is the moral, legal and ethical responsibility of a treating specialist to make their patient aware of the potential risks, benefits of a particular treatment or procedure or options to the same. It is the obligation of the professional to ensure that the patient has clear and sufficient information before making a decision. Only then is a patient able to willingly accept or reject the procedure or treatment or consider the options offered by their treating specialist.
This information is provided in the initial or early consultations the specialist will have with their patients and will be documented in a letter to the patient’s general practitioner. The patient will be required to fill out and sign an informed consent form confirming their understanding and their willingness to undergo such a procedure or treatment.
The Importance of Informed Consent in the Law:
In Australia, only people with legal capacity—i.e., who are adults aged 18 years or older and are not mentally disabled—can provide informed consent. People who do not have legal capacity, i.e., children under 18 years or people who are mentally disabled, can have their legal guardian make that informed consent for them. Without clear and sufficient information, the patients will not be able to make a valid consent. The specialist will be responsible for violating their patient’s bodily autonomy if consent is not established, which is considered their breach of duty of care.
Lana's Story: When Consent is Questioned
Lana, a 62-year-old woman with a history of depression, morbid obesity, anxiety, and other comorbidities, was experiencing problems with her right knee. She reported it would lock at times or make clicking sounds when walking. She consulted her general practitioner and was referred for an X-ray of her right knee. She was diagnosed with a major meniscus tear in her right knee. Her general practitioner advised her to lose weight.
When her right knee did not respond to non-surgical options, such as cortisone injections, her GP referred her to a knee surgeon.
At the initial consultation with the knee surgeon, Lana was advised by the knee surgeon that surgery was the only option to treat the torn meniscus in her right knee. He advised her of the potential risks and explained to her that surgery may not completely get rid of her symptoms. Lana was again made aware that she needed to lose weight, which would help relieve her right knee pain. Lana made the decision to undergo surgery; however, the surgery failed to relieve her of her symptoms. She continued to complain of locking and clicking following the procedure.
Lana alleged that the knee surgeon had breached his duty of care to her by not providing her with sufficient and clear information for her to make the right decision before undergoing surgery.
Despite clear references in the medical and clinical records, she sought to deny that her right knee was painful or clicked and locked prior to her surgery.
Did the Surgeon Obtain Her Informed Consent?
Lana came to Veritas Law Firm seeking legal advice on whether there was a breach of the duty of care owed to her by her surgeon. A thorough review of the records provided by Lana revealed the following:
She was in severe and constant pain prior to the surgery and complained of clicking and locking of her right knee on numerous occasions to her GP prior to the surgery.
She was made aware by the surgeon to quit alcohol and lose weight to help her relieve her knee pain with or without surgery.
The X-ray of her right knee detected a complex tear of the meniscus, which required surgery, hence, the cortisone injections failed to relieve her of the pain symptoms.
Her surgeon wrote a letter to her GP informing him of what was discussed at the initial consultation with Lana, including the likelihood of the surgery not giving her the desired results.
Lana had signed the informed consent form acknowledging that she was provided with clear and sufficient information to make her decision to undergo surgery willingly.
Unfortunately, in this situation, it was decided that there was insufficient evidence to support an allegation of breach of duty.
This case demonstrates the importance of informed consent. In situations where informed consent has not been obtained, a breach of duty may be demonstrated, and any damage suffered following medical procedures may be recoverable.
How Veritas Law Firm Can Help You
Please contact our team of medical negligence lawyers to help you with the right advice if you have:
Suffered an injury as a result of a doctor’s negligence; or
Consider you have not been provided with clear and sufficient information regarding your injury, which required surgery or non-surgical options enabling you to make a fully valid decision relating to the same.
We will not only ensure your rights are protected but will ensure you are paid the right compensation you are entitled to.
Additional Resources:
This article is provided for general informational purposes only and does not constitute legal advice. While every effort is made to ensure the accuracy of the information provided, Veritas Law Firm makes no representations or warranties, express or implied, about the completeness, accuracy, reliability, suitability, or availability with respect to the content. Readers are advised to seek professional legal advice tailored to their specific circumstances before taking any action based on this information. Veritas Law Firm accepts no liability for any loss or damage incurred as a result of reliance on the information presented herein.