How vital is consent and communication in a medical negligence case?

Published 12 Jul 2018

A visit to the doctors can sometimes lead to serious patient injury and a nightmare medical negligence case if healthcare staff don't accurately communicate their intentions. It's also vital for patients to give consent to any course of action taken. Without this go-ahead, patients can end up worse off than when they arrived and claim costly compensation for malpractice.

Let's take a look at why consent and communication between doctors and patients is so important in order to mitigate the risk of medical negligence cases.

What is meant by 'open communication'?
A medical professional has a duty to explain the diagnosis of an ailment and their proposed course of treatment in a clear way. This includes using simple language and laying out plans in full so patients are fully aware of what's being suggested. Failure to do so can lead to people believing they have been tricked into a treatment they may not agree with. It also means if something goes wrong, doctors can fall back on a patient's agreement with whatever treatment was recommended as a defence.

What is a "failure to warn" case?
This lack of open communication is typified in a 'failure to warn' case. If a medical worker doesn't warn their patient about the associated risks or side effects of a course of treatment which ultimately causes injury, the patient can legally seek negligence compensation. Healthcare professionals can ultimately avoid this issue by ensuring they communicate clearly and substitute medical terms for plain language where possible.

What does 'medical consent' mean?
Once a course of treatment is clearly communicated, it's vital patient consent is given before anything else happens. This covers actions such as:

  • Physical examinations.
  • Taking blood or other bodily fluids.
  • Injecting vaccines or other drugs.
  • Exposing the patient to X-Ray radiation.
  • Giving medication or sedatives.

It's the doctor's role to offer the best medical advice possible - but it's down to the patient to take or reject that advice.

What's the difference between 'express' and 'implied' consent?
When a patient offers their consent for a course of treatment or further medical testing, this will usually be done explicitly in writing or verbally. This includes signing medical waivers, verbally agreeing to treatment and volunteering medical history.

Implied consent, however, is much more complicated. If a patient offers a non-verbal sign of consent, such as a nod, doctors should still clarify this meaning to avoid the risk of misreading someone. If a patient is unconscious, a doctor may still need consent from a guardian or companion. If a patient is alone, medical staff can act in their medical best interests. However, this may leave the healthcare centre liable for any injury caused.

For more information about medical negligence law, contact Gerard Malouf & Partners Lawyers today.