Feel Poorly-Informed About Your Surgery After The Fact? Here's What You Need To Know About Informed Consent

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In a perfect world, all surgical procedures go smoothly with no complications at all. But since the world is far from perfect, sometimes people who undergo surgical procedures have a long road of recovery ahead of them, especially when emergency surgeries are performed and when patients experience complications they were not aware were possible prior to surgery.

Before surgical procedures can take place, doctors are required by law to obtain informed consent in non-emergency situations. Here are a few questions you may have if you feel you were not made fully aware of complications you experienced after a surgical procedure. 

Was the Surgery an Emergency, Emergent, or Urgent?

Generally, informed consent is required before treatment is given. However, when the patient is unable to consent due to a medical emergency or an emergent condition, the physician is not required to obtain informed consent. Emergency and emergent conditions that do not require informed consent must be demonstrated by severe suffering or imminent threat of the patient's health or life. An emergency is defined as an unexpected and sudden need for action, such as a ruptured appendix, while an emergent condition is defined as the beginning of an emergency, such as a caecum perforation discovered during an appendectomy. 

Urgent situations do not necessarily fall under this exception. An urgent situation indicates that quick action is necessary but not as immediate as an emergency or an emergent condition. Therefore, an urgent condition may provide enough time for informed consent to be obtained before surgery begins, if at all possible. If you are unsure whether your surgery was an emergency or an emergent or urgent condition, obtain your medical records and have a malpractice lawyer review them with you. 

Were You Under Duress, in Extreme Pain, Sedated or Medicated? 

In order for informed consent to occur, the doctor or someone on their medical team needs to explain the common risks and serious risks of the surgery. This doesn't necessarily mean that you were informed of every small detail of the surgery, though you should have been made aware of the nature of the procedure and why it was necessary for you, if the situation was not emergent or an emergency. This information should have been given you everything you needed to know in order for you to make a decision regarding whether or not to have the surgery and what complications to be aware of afterwards. 

However, if you were under duress, in extreme pain, sedated, or medicated while being informed, you may not have had the cognitive ability to give consent. At the time, you may have just wanted someone, anyone, to do something, anything, so you could feel better, without taking into consideration the risks and possible complications of the surgery. If you feel that you were cognitively incapable of giving consent prior to surgery, your consent may be invalid; therefore, it may be possible for you to file a malpractice claim based on that fact. 

In some cases, immediate family members who are with their loved ones may be asked to provide what is called a proxy consent or a surrogate consent when the patient is unable to give consent, such as when severely injured and incapacitated due to a serious motor vehicle accident or when the patient is in extreme pain or heavily sedated. Because of these issues with obtaining consent, it is often one of the first things malpractice lawyers look for when investigating whether or not a malpractice claim can be filed. Because of this, be sure any and all consent forms are included in the medical records you share with a malpractice lawyer during your initial consult. 

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