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Informed Consent Attorney in Orlando

If Medical Staff Did Not Get Your Permission, They May Be Liable

Under the Florida Patient’s Bill of Rights and Responsibilities, Florida healthcare providers must ensure that their patients are properly informed before undergoing medical procedures such as surgery and that they are in full agreement with the treatment plan. More specifically, under this law, prior to treatment, each patient has a right to know his or her diagnosis, the nature of the proposed treatment, other treatment options, the significant risks of each option, and his or her prognosis, unless the patient is incapable of receiving this information. Where this is the case, the patient’s guardian or designated personal representative must provide informed consent on the patient’s behalf.

Informed Consent Is a Process

Obtaining the patient’s informed consent is a process and requires more than just a signature on a form. First, the patient must have the ability to make informed decisions. Next, the patient must actually receive the information needed to make an informed choice and must have his or her questions about the treatment options answered. Finally, the patient’s informed consent must be demonstrated in writing.

During informed consent discussions, the patient should be informed as to:

  • Type of care proposed
  • The benefits (results) sought and likelihood of success
  • Potential risks and side effects
  • The process of recovery
  • Alternative treatments that may be considered, along with their risks and side effects
  • The likely results of not proceeding with treatment
  • The patient’s right to refuse care
  • The identities of other providers involved with the treatment
  • Any potential conflicts of interest or relationships the medical providers have involving educational entities or businesses

Further, the patient’s written consent should include the following information:

  • Date and time of consent
  • Name of physician(s) performing procedure and the site (hospital)
  • Tasks to be performed, such as harvesting, dissection, removal, implantation, etc.

The Informed Consent Process May Not Be Delegated

The physician is required to complete the process of informed consent personally, although support staff may assist. If the physician has not spoken with the patient and addressed any questions, he or she must do so before proceeding with a procedure. If the physician delegates this task to someone who is not qualified to obtain informed consent, the physician may be subject to discipline from the state’s medical board.

Potential Barriers to Informed Consent

According to the Joint Commission on Accreditation of Healthcare Organizations, there are many potential barriers to a patient’s ability to provide informed consent that healthcare providers should bear in mind. For example, it has been noted that the patient’s health-literacy and cultural background may influence how the physician should approach the informed consent process to ensure the patient’s full participation in decision-making about his or her care. The Joint Commission has further encouraged physicians to make use of visual aids and everyday language in order to help facilitate these discussions.

When Informed Consent Is Not Required

It is important to note that there are certain limited circumstances under which a patient’s informed consent is not required prior to treatment. For example, under Florida law, a healthcare professional does not need to have informed consent before rendering aid to a person who needs emergency treatment if the person is incapacitated and would reasonably have provided consent if they were able to do so. Further, sometimes, a court order may require that the physician proceed with certain procedures regardless of the patient’s consent. For example, those convicted of prostitution may be subject to state- or federally-mandated testing for sexually transmitted diseases.

Failure to Obtain Informed Consent

A physician’s failure to obtain informed consent from a patient before performing a procedure may be the basis for civil liability. This means that the patient who underwent the procedure may be entitled to sue the physician for any harm that the patient experienced as a result of the procedure. When an allegation of failure to obtain informed consent is made, the Florida Department of Health may also choose to investigate, and the physician may be subject to disciplinary measures by the Florida Board of Medicine.

Orlando Attorneys for Lack of Medical Consent

Have you or a loved one been harmed as a result of a medical provider’s failure to obtain an informed consent? The medical malpractice attorneys at Faiella & Gulden, P.A., have been pursuing justice on behalf of patients in Central Florida for decades. We strive to obtain fair compensation for victims of medical negligence. Contact our office today at (407) 647-6111 for a free consultation.

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