Medical consent forms are frequently signed by patients prior to undergoing medical or surgical treatment. However, the legal effect of the medical consent form is not well understood by many Canadians.
It is a common misunderstanding that a medical consent form signed before medical or surgical treatment prevents an injured patient from claiming against healthcare practitioners or hospitals. The truth is that a medical consent form plays a very small role in a medical malpractice action, if any. The medical consent form is not a waiver of your right to seek compensation if the doctor or nurse fails to meet the appropriate standard of care.
BILA advocates for families throughout Canada who have been affected by birth injuries caused by medical negligence. We know that there is a lot of misinformation out there about medical malpractice claims, including that signing a medical consent form affects your legal rights. Our goal is to help you understand the truth about birth injury claims so that you can make an informed decision about how to handle your child’s claim.
What Is a Medical Consent Form?
There are two elements to consent that are relevant to medical treatment. The first and most basic element relates to the fact that unless there is a serious emergency, a healthcare practitioner cannot provide any treatment to a patient unless that patient allows the healthcare practitioner to do so. In the case of a serious emergency where the patient cannot provide express consent, it is assumed that the patient consents to lifesaving treatment, unless there is information to the contrary. If a healthcare practitioner provides treatment without any consent, then the healthcare practitioner would have committed a battery.
The second element related to consent in medicine is known as the principle of informed consent. This element goes beyond an agreement between the healthcare practitioners and patients that treatment can be provided. Not only do patients have the right to choose to undergo treatment, they also have the right to choose the type of treatment they will undergo.
In order for patients to truly provide consent to treatment, they must be informed of all reasonable alternatives to treatment and the risks and benefits of each option. If the healthcare practitioner does not provide this information, an injured patient may have a claim for failing to obtain informed consent.
If the patient can show that with all the information, a reasonable person in their circumstances would have chosen a different option and therefore, would have avoided the injury. In those circumstances, an injured patient can claim for failing to obtain informed consent even if they cannot show that there was actual negligence in the way the treatment was carried out.
Will a Medical Consent Form Prevent Me from Pursuing a Malpractice Claim?
In effect, consent forms provide some evidence that the patient consented to treatment so as to protect the healthcare practitioner from a claim in battery. Most medical consent forms also contain a generic statement that the patient has been advised of the nature, risks and benefits of treatment and any treatment alternatives. As a result, the medical consent form may also provide some evidence that an informed consent discussion took place prior to treatment.
However, medical consent forms do not remove the right of a patient to claim against a healthcare practitioner for failing to obtain informed consent for treatment. These forms do not set out the details of the conversation and do not mean that a full informed consent discussion has actually taken place.
In many cases, patients become aware of an alternate treatment after the injury has occurred. In other cases, patients become aware that they were not provided with full information about the alternatives even though they were advised of the existence of another option. In these cases, the healthcare practitioners have not met their duty to obtain informed consent to treatment and may be held responsible for the injuries.
Medical consent forms also have no impact on an injured patient’s right to claim for negligence before, during or after treatment. As a result, an injured patient should consult an experienced medical malpractice lawyer regardless of whether a medical consent form has been signed.
Reach Out to BILA to Learn More
When you receive medical treatment, you are usually required to sign a host of documents that you may not fully understand. In some situations, you may believe that signing these forms means that you have given up your rights. It is important to understand that signing a consent to treatment does not waive your right to pursue a claim against the doctor or nurse.
The Birth Injury Lawyers Alliance (BILA) advocates for individuals and families who have suffered birth injuries related to medical negligence. We work with you to help you understand your rights, and then shepherd you through the process of seeking financial compensation. If you’d like to learn more, give us a call at 1-800-300-BILA or fill out our online contact form to schedule a free consultation with a birth injury lawyer in your province.
Resources:
- Informed consent: https://www.niaid.nih.gov/research/dmid-protocols-informed-consent
- Choose the type: https://www.healthline.com/health/informed-consent
The Birth Injury Lawyers’ Alliance of Canada (BILA) was formed in 2016 by a group of lawyers from across Canada with considerable experience in birth injury cases to promote the effective representation of children and families affected by avoidable injuries occurring at or around the time of birth.
