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Medical Lawyer FAQs: I Signed a Consent Form Before My Injury… Can I Still Sue?

On Behalf of | Jan 8, 2022 | Medical Malpractice

Whether you see a doctor for the first time or need to undergo a new treatment or procedure, your signature will be required on a number of different forms. This paperwork will likely include lengthy consent forms that describe the treatment itself, its success rates, and any potential risks. Many Baltimore residents believe they have no chance of suing for medical malpractice once these forms are signed, but a well-trained medical lawyer knows otherwise.

Baltimore Medical Lawyer FAQs: I Signed a Consent Form Before My Injury…Can I Still Sue?

The short answer is this: a consent form that is properly executed generally stops a patient’s ability to sue a provider for lack of informed consent. However, the consent form must reasonably and accurately identify all risks associated with that medical procedure. Otherwise, even a case of lack of informed consent can be pursued.

The patient must also be mentally competent to sign and do so of their own volition. Generally speaking, a patient agrees they have read and understood the provisions of a consent form as soon as they give their signature. But if the patient was intoxicated, suffering from dementia, or experiencing side effects from medication, they likely were not competent to sign the form. In such an instance, they may be able to sue for lack of informed consent.

In the Case of Negligent Care

No legal form can prevent a claim of negligent treatment if the care did indeed lead to harm. Some cases can be forced into arbitration rather than a lawsuit, but a legal form does not allow a provider or hospital to behave negligently. Negligence is generally defined as the failure to act in a way that follows an accepted standard of medical care.

This is a fairly slippery definition, so we’ll break it down into more digestible terms here. Medical professionals, including doctors, owe a duty of care to their patients. Consistent with this duty, they must provide care that any reasonably skilled and competent professional with a similar background and under similar circumstances would provide.

A More Concise Definition

A medical provider commits negligence when the care they provide veers from the accepted standard. Negligent acts that can lead to harm include misdiagnosis, medication errors, and anesthesia errors.

While negligence alone is not enough to warrant a lawsuit, subsequent harm or injury is. In other words, medical negligence becomes medical malpractice when poor treatment causes harm to the patient. “Harm” can manifest in many different ways, including:

  • The need for additional medical treatment
  • Unexpected and unreasonable complications
  • A worsening condition

The Provisions of a Medical Consent Form

Medical consent forms vary between different providers and procedures. In most cases, these forms include information about the procedure or treatment, potential risks and side effects, and details about your condition. While the verbiage may not remain constant, the purpose of every consent form is to educate patients – for both legal and informational purposes.

While consent forms – and even release forms, for that matter – are largely designed to prevent malpractice claims, they can also give rise to them. This happens when the form is poorly written and the patient suffers a complication either not listed or improperly described on the consent form. And that brings us to our next point: if a certain complication is a recognized risk, it should indeed be listed on the form.

What Does and Doesn’t Need to Be Listed

This is not to say that every single complication associated with a certain treatment or procedure needs to be listed on a consent form. To illustrate, if medical literature indicates a particular complication occurred only three times out of 9,000 surgeries, that complication can probably be omitted from the form.

On the other hand, a rare complication that is fairly well known in the medical community should be included on the consent form. If that complication is not detailed, and you suffer from it, you may have a medical malpractice claim against the provider. This boils down to the provider performing the procedure without first obtaining your informed consent.

Failure to Adequately Detail a Complication

This situation arises when the consent form erroneously states the odds of a given complication. Let’s say a complication is known to occur in 15% of all procedures, but the consent form you sign states it occurs just 5% of the time. This information is clearly misstated and could have influenced your decision to have the procedure.

If your procedure leads to the complication in question, you may have a claim for lack of informed consent. In such an instance, you could argue you would not have opted to have the procedure if you had known the real odds of the complication’s risk.

Crafting a Medical Malpractice Case

We’ve established that to build a medical malpractice case, you must essentially show the doctor failed to treat your condition. And, in turn, that failure led to an injury. Every state, however, maintains its own laws and procedures that govern medical malpractice. In Baltimore, Maryland, specifically, malpractice claims must originate in Health Claims Arbitration.

After your statement of claim is filed, you have 90 days to provide a certificate of merit signed by a physician stating your claim is warranted. That certificate must contain the following details:

  • The injury you specifically complained of
  • The alleged standard of care deviation
  • Steps the medical provider should have taken to meet the standard of care
  • How the deviation from care directly gave way to your injury

Next Steps

These requirements help separate frivolous claims from those that are legitimate. Once your claim is filed, the defendant must respond by filing their own answer and certificate. In general, the defendant has two options. The first is to show they did in fact comply with the standard of care. The second is to argue convincingly that the standard of care deviation did not cause your injury.

Either you or the defendant can then waive out of arbitration. If neither of you takes this option, the case will continue through arbitration and be decided by a three-member panel. Their decision can be appealed by you or the defendant.

Proceeding to Court

Alternatively, if one of you does opt out of arbitration, the case will likely proceed to court and be decided in a way that is similar to other civil matters. This simply means your medical lawyer will present evidence that supports your case. The defendant’s attorney will then present their own case. After hearing both sides, the judge will make a ruling.

Maryland Cases

In Baltimore malpractice cases, medical experts must confirm the traditional standard of care for treating a patient with the same condition as yours. These same experts must also establish a greater than 50% chance your injury or harm occurred only because of medical malpractice. In short, your medical lawyer will work with a team of knowledgeable experts to show your injury was the direct result of medical malpractice.

Just to recap, a consent form – even one that is well-written – cannot bar a legal claim of negligence. What it can do is stop a case for lack of informed consent, but even then, the form must be properly executed. Don’t take chances with a medical malpractice claim that has led to your harm or injury. Instead, get the answers you need from a team of qualified, experienced lawyers. Schedule your consultation today by contacting Peter Angelos Law.