What is informed consent in a medical negligence case?

PUBLISHED 17 May 2016

Medical practitioners often top the rankings of the most trusted occupations in Australia. In fact, health care specialists took the top three spots in Roy Morgan Research's 2015 Image of Professions Survey, with nurses, pharmacists and doctors coming first, second and third, respectively.

The study tracks which jobs Australians consider to be the most honest and ethical, and nurses have topped the table for 21 years. It's perhaps no surprise, then, that many people have so much faith in medical practitioners to always do their best for their patients.  

Sadly, mistakes can occur that leave individuals with serious injuries or illnesses due to the standard of care they received. In some circumstances, people may believe the problems they've suffered were the result of medical negligence.

The issue of informed consent can become extremely important in such cases, as it's part of a medical practitioner's duty of care to ensure patients are always fully knowledgeable of the risks that accompany operations, treatments or other procedures. If the patient wasn't sufficiently aware of the potential dangers, they may be eligible for compensation.

However, proving that a doctor or surgeon failed to provide enough information for the patient to make an informed decision can be tough. It is also not always enough on its own to result in a payout.

Medical negligence and causation

Medical practitioners typically obtain your approval for surgeries or treatments through a consent form. The document will outline the expectations, risks and procedures involved, and patients must sign the form before further actions can be taken.

However, the consent form is not considered legally binding unless the doctor has specifically informed you of the advantages and disadvantages of proceeding. So, people who have signed a document may still be able to pursue a medical negligence claim.

Should something go wrong, plaintiffs must show that their doctor did not seek informed consent, while proving that they may have avoided the treatment if they were aware of the risks. The claimant needs to also indicate causation; this means the doctor's negligence most likely led to their injuries.

The legal standard of proof is typically 50 per cent for medical negligence claims. In other words, the plaintiff's legal team must show there was a greater than 50 per cent chance that the doctor's failure to inform the patient directly resulted in alleged injuries.

If you'd like to know more about informed consent and medical negligence claims, please discuss your case with an experienced personal injury lawyer in NSW.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.