Serious Injury Team
September 13, 2017
If You Signed an Informed Consent Form, Can You Still Sue for Malpractice?
A visit to a doctor or hospital requires filling out a lot of paperwork. Sometimes the amount of time it takes to fill out the paperwork is longer than the medical visit itself. When a medical procedure, like surgery or administration of a vaccine, is performed, even more paperwork must be completed.
Filling out forms is mentally exhausting and many, if not most, patients breeze through paperwork without much thought. They initial and sign the spots they have been instructed to initial and sign. This is natural. Patients trust their doctor. They trust their doctor’s recommendation for a procedure and trust their doctor’s competence in performing it.
In most cases, this trust is warranted, and patients never have to think about the paperwork they filled out again. But in some cases, that trust is not warranted. Some physicians fail to live up to their duty to provide competent medical care and injure their patients. In such cases, patients often find themselves worried that they signed away their right to file a medical malpractice claim.
At D’Amore Personal Injury Law, we have a lot of conversations with patients like this who underwent medical procedures in Baltimore and other Maryland cities. Many patients know they signed a informed consent form and ask us whether they can still file a medical malpractice claim. The short answer is yes. Here’s why:
Informed Consent Forms
Without medical training, it’s difficult to understand medical procedures and their associated risks. For example, if you ask the average person on the street what “arthroscopic subscapularis repair” is, few will know. Even those who know it’s a type of shoulder surgery probably won’t be able to tell you how it’s performed or what the risks are.
To protect patients, Maryland law requires medical providers to obtain informed consent from their patients before they perform medical procedures like surgery or vaccinations. Informed consent means the patient agreed to undergo the procedure after being given key information about it. The physician must tell the patient why the procedure is being recommended, the intended outcome of the procedure, the likelihood that the procedure will be a success, and the risks associated with the procedure.
If the patient agrees to undergo the procedure, his or her agreement is memorialized via signature on an informed consent form. In plain English, when the patient signs the form, he or she is saying:
"I understand the procedure I am about to undergo and its risks, and I want to undergo the procedure."
The Impact of Informed Consent Forms on Lawsuits
When informed consent is properly obtained, it can prevent a patient from receiving a settlement based on allegations that they did not know about the procedure’s risks. This makes sense. It would be unfair for a patient to listen to the potential risks, agree to undertake those risks, and then sue because they one of those risks occurred.
That being said, an informed consent form does not prevent patients from filing medical malpractice claims based on their physician’s intentional or negligent wrongdoing. This makes sense, too. As a society, we don’t want to allow physicians to be able to avoid being held accountable for wrongdoing or careless work just by requiring patients to fill out a form.