Chicago Lack of Informed Consent Attorney

When you receive medical care, you trust your doctors to provide the treatment that will offer the best possible outcome. You rely on their medical training to make the appropriate assessment and decisions regarding your health. However, you still have a right to be a part of this process. Additionally, in some cases, the consequences of treatment may be more severe than the benefits, and it is your right to decide if this is the right choice for you.

If a doctor fails to give you the appropriate information regarding your medical treatment, they deny you the basic right to make decisions for your own life and body. This is is not only immoral but it is illegal and you should not have to suffer the consequences. The Chicago lack of informed consent attorneys at Karlin, Fleisher & Falkenberg, LLC are prepared to help protect your right as a patient. Learn more about medical negligence.

Qualifications of Informed Consent

Informed consent refers to your right as a patient to voluntarily decide on your course of medical treatment. This gives you the right to know the possible consequences of a procedure, all options available, and the likelihood of benefit. In certain settings, such as a yearly physical, consent is implied because the procedure is so low-risk. In most other scenarios, it is legally required that your doctor follows informed consent protocol, such as:

  • Ensuring that you have the capacity to make medical decisions
  • Disclosing all relevant information about a procedure or test
  • Disclosing possible consequences if you choose to decline treatment
  • Ensuring that you comprehend the information about your treatment and providing additional information, assistance, or translation services when needed
  • Allowing you to voluntarily consent to treatment without coercion

By following these informed consent protocols, your physician allows you to be part of the medical process and make the best decision possible for your health. The only reasonable exception is in the event of a medical emergency.

What Does a Lack of Informed Consent Mean?

Medical procedures and treatments all involve some form of risk to the human body. Physicians have the responsibility to fully inform a patient about the potential risks and side effects that may result from any given course of treatment or medical procedure. The patient, with all the information in hand, can then make an educated and informed decision about whether the risks of the treatment or procedure outweigh the risks of the condition or disease itself. This is the heart of informed consent. A lack of informed consent means that a doctor failed in their duty to clearly communicate with a patient what to expect following a medical procedure or course of treatment.

As a patient, you are typically given stacks of paperwork to sign before a medical procedure and very little time to review all of the material they include. Physicians and healthcare facilities like to trot out this paperwork as proof you were informed of the risks. While you may have signed paperwork saying you have been made aware of the risks, that doesn’t necessarily mean a doctor is in the free and clear.

A physician must discuss the procedure and its risks with a patient. The patient must demonstrate that they understand what has been discussed and have the opportunity to ask questions. If the physician never actually clearly communicated to the patient, they may be in breach of informed consent.

Risks that Must be Disclosed to Patients

The risks of medical procedures can be broad. Is there a lack of informed consent when a physician fails to disclose the 1 percent chance of a rare side effect happening? Physicians have a duty to disclose important risks, but not necessarily all risks. Illinois law stipulates that all medical professionals must obtain a patients’ informed consent before a procedure which includes disclosing information about the nature of the procedure, the expected and potentially unexpected results, risks, complications, and alternatives.

In these types of cases the question that is typically asked to stipulate whether or not there was a violation of informed consent boils down to this, would a normal patient with the same medical history and condition have made the same decision about treatment if the risks had been disclosed ahead of time?

Other Examples of Failure to Obtain Informed Consent

The issue of informed consent may seem straightforward, a doctor either advised you of the risks or they didn’t. However, there are situations where a physician may have explained everything clear as a bell and yet still violated informed consent.

When you enter into an informed consent situation you are getting information and agreeing to a certain type of procedure or treatment for a certain medical issue or condition. If a physician instead performs an entirely different type of procedure or works on an entirely different area of the body, they may be in violation of informed consent. Why? It’s because you only made the decision to go ahead with procedure A. A doctor performing procedure B has not informed you of the inherent risks of the differing procedure. If procedure B was a mistake or unnecessary at the time, you may still have a case for a lack of informed consent.

This does not apply if a physician goes ahead with the originally planned procedure and then finds a serious or life-threatening problem in the course of their work. In this instance, a physician may be able to deviate from their original and informed plan.

The Burden of Proof in Informed Consent Cases

In cases where there has been a violation in informed consent, as with other medical malpractice cases, there are certain factors that must be present in order to bring forth a legal case. The first factor that must be established is that an official doctor-patient relationship exists. A patient must have sought out the medical help and expertise of a physician for their medical complaint or condition. A patient does not have the right to sue a physician because they received poor information in passing or while attending a function. The other characteristics that must be present include the following:

  • A violation in the standard of care
  • The standard of care is a reference to what are generally known to be the medical standards recognized by healthcare professionals as acceptable medical treatment options for particular conditions or injuries. To establish that this standard of care was breached a legal team would examine whether another reasonably skilled doctor with a similar education would have provided the same information under the same circumstances.
  • Negligence resulted in an injury
  • In a lack of informed consent case, a victim must demonstrate that the physician was negligent in not providing them with the proper information regarding risks associated with the given procedure or treatment and that an injury was the result. In many cases, if a patient had the full scope of knowledge about the risks of a procedure, they would have opted for a different treatment.
  • The injury led to damages
    • As in all medical malpractice cases, a victim must also establish that the negligence led to the injury and losses as a result.

Situations Where Informed Consent May Not Apply

There is some situation where a physician does not need to obtain informed consent in order to treat a patient. Illinois state law requires physicians to have informed consent from a patient for all non-emergency medical procedures.

During a medical emergency, there is often no time to inform a patient about the risks that may be involved in a procedure or medical treatment. The second situation where informed consent does not apply relates to emotionally fragile or sensitive patients. In some instances, if a patient is emotionally fragile or stressed a physician may be able to withhold some information in an attempt not to further disturb or traumatize the individual.

While there are situations where a physician may be justified in not offering all the intimate details of a procedure, if you believe you have been purposely kept in the dark it is best to discuss your particular circumstances with an experienced attorney. The team at Karlin, Fleisher & Falkenberg, LLC can review the facts surrounding your individual case and offer advice on the best legal course for your situation.

Contact a Chicago Lack of Informed Consent Attorney

Failing to receive consent is not only a violation of a patient’s rights but it can have devastating results. If you or a loved one have suffered from a lack of informed consent, you have the right to fight back. A Chicago lack of informed consent attorney at Karlin, Fleisher & Falkenberg, LLC can help you determine the next step to take and may be able to help you receive compensation. To discuss the specifics of your case, contact us at 312-346-8620 today.

Written by Karlin, Fleisher & Falkenberg, LLC Last Updated : December 4, 2023