As a patient in Louisiana, you have the right to make informed decisions about your medical care. Except in extraordinary circumstances, your doctor must provide the information you need to decide whether you want to proceed with treatment.
So, what happens if your doctor doesn’t provide you with this information? What happens if you consent to treatment because you weren’t aware of the risks involved? Or, what if your doctor provides treatment without your consent? In each scenario, you may have a claim for medical malpractice.
Understanding Louisiana’s Informed Consent Law for Medical Care
All of these scenarios are governed by Louisiana’s informed consent law. In general, doctors and other healthcare providers in Louisiana must obtain a patient’s informed consent before providing treatment that has the potential to result in serious complications or death. Section 1157.1.A of the Louisiana Revised Statutes states:
“[W]ritten consent to medical treatment means the voluntary permission of a patient . . . to any medical or surgical procedure or course of procedures which sets forth in general terms the nature and purpose of the procedure or procedures, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, of disfiguring scars associated with such procedure or procedures . . . .”
Section 1157.1. A also provides that for a patient’s informed consent to be valid, the patient’s consent form must “acknowledge that . . . disclosure of [all required] information has been made and that all questions asked about the procedure or procedures have been answered satisfactorily.”
The law generally requires healthcare providers to obtain patients’ informed consent in writing (although exceptions exist). These days, hospitals and other providers have policies and procedures to ensure that all patients sign informed consent forms. But, these policies and procedures often emphasize form over substance, and the fact that a patient signed a mandatory form does not necessarily mean that the patient provided informed consent.
Louisiana law also states that a patient’s informed consent form is “presumed to be valid and effective, in the absence of proof that execution of the consent was induced by misrepresentation of material facts.” As a result, healthcare providers will often use informed consent forms as a shield, and then it is up to their patients to prove that they did not receive the information they needed to make an informed decision.
What if a patient is incapacitated? If a patient is incapacitated, the patient is necessarily unable to provide informed consent. In these situations, healthcare providers may need to obtain consent from surrogate decision-makers or have a duty to provide care to protect the patient. This is one possible exception to the informed consent requirement, although there are clear limits on what healthcare providers can do without their patients’ knowledge or approval.
Filing a Medical Malpractice Claim Based on Lack of Informed Consent
While Louisiana’s informed consent law protects healthcare providers in many respects, it also clearly protects patients. For example, Section 1157.1.D of the Louisiana Revised Statutes specifically acknowledges that patients may pursue medical malpractice claims based on a lack of informed consent. Under Section 1157.1.D:
“In a suit against a physician or other health care provider involving a . . . medical malpractice claim which is based on the failure of the physician or other health care provider to disclose or adequately to disclose the risks and hazards involved in the medical care or surgical procedure rendered by the physician or other health care provider, the only theory on which recovery may be obtained is that of negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in deciding to give or withhold consent.”
To have a claim based on lack of informed consent, a patient must be able to show that he or she would have withheld consent had he or she received disclosure of all relevant information. The patient must also show that a “reasonable” person would have considered the withheld information important or “material.” If the patient would have consented to the procedure regardless, or if a reasonable person would have consented to the procedure with full knowledge of the risks involved, then the provider’s failure to obtain informed consent does not establish a claim for damages.
There are various options when it comes to proving a lack of informed consent. Some examples of ways patients may be able to prove a lack of informed consent includes:
- Lack of a signed implied consent form (though, as discussed above, in cases involving incapacitated patients, this won’t necessarily provide grounds to pursue a claim);
- Testimony from family members or advocates who were in the room when the patient signed the informed consent form;
- Evidence that the patient either did not understand or misunderstood the information his or her doctor provided;
- Evidence that a reasonable person would not have consented to the procedure at issue with adequate information of the risks involved; and,
- Evidence that decisions regarding a patient’s care were made after the patient signed an informed consent form.
As a final point of clarification, signing an informed consent form does not waive a patient’s right to pursue a medical malpractice claim. When patients consent to treatment, they do not consent to receive substandard medical care. If your doctor made a mistake that caused you harm, you could file a medical malpractice claim regardless of whether you consent to the care in question.
Discuss Your Legal Rights with an Alexandria, LA Medical Malpractice Lawyer
Do you need to know more about filing a medical malpractice claim based on a lack of informed consent? If so, we encourage you to contact us promptly. To discuss your legal rights with an experienced Alexandria, LA medical malpractice lawyer in confidence, please call 318-310-7382 or tell us how we can reach you online now.