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Lack of Informed Consent

California Lack of Informed Consent Medical Malpractice Claims

California Medical Malpractice Attorneys for Lack of Informed Consent Claims

Los Angeles medical negligence lawyers explain your rights

Informed consent speaks to the exchange of information and understanding between a patient and his or her physician in a health care setting. As an adult, you have the right to decide what happens to your body. When you visit the doctor, you have the right to ask about a proposed treatment and receive accurate information in a way that you can understand, so that you can make informed choices about your health care.

If your or a loved one’s injury was a result of the lack of informed consent, you may have grounds for legal action. Contact the California medical malpractice lawyers at Heimberg Barr LLP immediately. The challenges your injury has caused in your life may seem insurmountable, but a medical malpractice lawsuit may decrease the burden.

What is informed consent?

According to the American Medical Association (AMA), “The process of informed consent occurs when communication between a patient and physician results in the patient’s authorization or agreement to undergo a specific medical intervention.” Informed consent conversations can also be had with the patient’s surrogate if the patient lacks decision-making capacity. In an emergency, if the patient is unable to decide and there is no surrogate available, a doctor may initiate treatment without informed consent, but he or she should inform the patient or his or her surrogate as soon as possible.

During the discussion, the medical professional explains the benefits and risks of the proposed procedure, and the patient should be given the opportunity to ask questions until he or she has a clear understanding of the proposed treatment. Sometimes, patients might decide that the benefits are not worth the risk and decide to decline the proposed treatment. You are within your legal rights to do this.

There is no specific definition of informed consent in California law, however, in case law it is understood to mean that a patient must “receive sufficient information to make a meaningful decision” about his or her healthcare. (Cobbs v. Grant (1972) 8 Cal.3d 229) If the physician fails to disclose a significant risk, then the patient does not have adequate information from which to form an opinion.

What is medical battery?

In California, if a doctor, surgeon, nurse, or other medical professional intentionally violates a person’s right to decide how he or she will be treated, the patient can make a claim citing medical battery. To establish a claim, the patient must prove:

  • The procedure was performed without consent; or
  • The patient gave conditional consent for a procedure, those conditions were not met, and yet the professional performed the procedure; or
  • The patient gives consent for one procedure, but the professional performs a substantially different procedure instead.
  • Absence of truthful information – The medical professional is not merely omitting a material fact which would be failure to provide informed consent – but tells you to get surgery that you don’t really need, or lies about entire nature, extent, dangers. This amounts to fraud, breach of fiduciary duties, battery, and other potential causes of action.
  • Ghost surgery – Patient consents to surgery by one doctor or surgeon and a different, doctor or surgeon, generally one less trained or experienced, performs all or critical components of the surgery and causes harm.
  • Surgery beyond consent – The procedure(s) performed is/are beyond what was consented to.

“The key element of battery is that the touching is not authorized, not that it intended to harm the person” according to LSU Medical and Public Health Law.

You may have grounds for legal action in cases of medical battery. You may be able to recover damages if you were injured due to your doctor failing to get your informed consent, or if the doctor performed a procedure that was beyond the scope of your consent.

How can a California medical malpractice lawyer help my informed consent of battery case?

Patients have the right to receive information and ask questions about the recommended treatments so they can make well-considered decisions about their care. When a physician performs a medical procedure without a proper informed consent and causes patient harm, Heimberg Barr LLP is ready to help. The firm’s experienced Los Angeles medical negligence attorneys understand the importance of bodily autonomy and your right to privacy. They are able to explain these concepts easily to juries, and to question the medical experts the defense uses about these technical legal questions.

Heimberg Barr LLP is uniquely qualified to handle complex cases such as these. Dr. Steven Heimberg is a physician and attorney, and Ms. Marsha Barr-Fernandez is a formidable litigator. They have dedicated their careers to helping people and fight exclusively on behalf of the injured.

Were your rights violated? The Los Angeles medical malpractice lawyers of Heimberg Barr LLP can help

You have a right to decide if, when, and how you will be treated by your doctors. If a medical professional fails to obtain your informed consent, you could be entitled to damage. To schedule a free consultation with a medical malpractice attorney, please call Heimberg Barr LLP (213) 213-1500 or complete the contact form today.

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