Stethoscope Over Malpractice Wooden Block

How Informed Consent Impacts Suing for Medical Malpractice

Jose Orihuela , Attorney at Law March 20, 2023

We count on a certain level of skill and professionalism when we go to the doctor, never expecting to walk away in worse condition than when we came. However, medical malpractice and medical negligence incidents happen more often than you think. In 2022, there were 3,371 Adverse Action Reports (AAR) issued against Texas health care professionals, according to the U.S. Department of Health & Human Services. In some cases, patients may be unsure of their rights to sue a medical provider. This gets especially tricky around the topic of informed consent. 

If you feel you were the victim of medical malpractice, you may have questions like, “Can I still sue for medical malpractice if I signed an informed consent form?”, “When is informed consent required for a medical procedure?”, or “What if I gave informed consent for a procedure and then they performed a different procedure?” You need to speak with an attorney immediately. If you  live in Houston (including South Houston), Webster, Pasadena, or anywhere else in Texas, reach out to my firm at Jose Orihuela, Attorney at Law. I’m ready to discuss your options and help you find a path forward. 

Understanding Informed Consent  

What is “informed consent?”  

Because there’s always some level of risk to any medical procedure, providers are required to inform you of these risks so you can make an informed decision whether or not to proceed. After the provider explains the risks and ensures you understand them, they will have you sign an “informed consent” form acknowledging this. You should know the difference between "express" and "informed" consent. Express consent simply means you’ve agreed to have a medical procedure, whereas informed consent requires detailed information to be provided to you and to be given the opportunity to ask questions and seek clarification. 

Knowing who can give consent for a medical procedure is also important. In cases where the patient is a minor, a doctor may obtain consent from the parents. In cases where the patient is incapacitated, a judge may appoint a representative who can give consent.   

When is consent not required?  

There are a few cases where giving informed consent is not required. This is typically for routine medical care where consent is implied (such as scheduling and showing up for a flu shot), or an emergency procedure such as when the patient is unconscious and physically unable to give consent or when delaying the procedure to obtain consent would endanger the patient.     

Can I Still Sue for Malpractice If I Signed an Informed Consent?  

Yes, you can still file a lawsuit if you signed an informed consent—but you must meet certain conditions. This could mean that the doctor performed a different procedure than the one you consented to, that they made a mistake during the procedure, or were in other ways negligent of your care. However, any time you wish to bring forward a case like this, it should be done with the help of an experienced medical malpractice attorney.  

What Factors Will Be Considered to Determine “Informed”?  

One question clients ask is, “How will they determine if a patient was properly informed?” If you don’t feel you were adequately informed of the risks you faced, you’ll need to prove this in court. With your lawyer’s help, you’ll need to provide context and evidence that clearly shows you weren’t properly informed. This usually means proving that another doctor in the same situation would have disclosed a risk, and that if you had this additional information, you wouldn’t have given consent.  

Consent on a Different Procedure  

Lastly, you may have a strong medical malpractice claim if the doctor performed a procedure on you that was different than the one you consented to. However, this option is typically reserved for mistakes made by the doctor and not for cases when they decided to perform a different or additional procedure to address an issue that was discovered during the first (consented to) procedure. 

Understand Your Options  

You don’t need to go through this process alone. To speak with a personal injury attorney in the Houston, Texas area including Webster (my office location), South Houston, or Pasadena, reach out to me at Jose Orihuela, Attorney at Law.