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Does signing a consent form mean you can't file a Texas medical malpractice case?

Informed consent never excuses medical negligence

There are a lot of different ideas out there among patients, family members, and even health professionals about the impact of informed consent forms.

Let’s start with why we have informed consent paperwork in the first place. Under common law, no one, including a physician or surgeon, is allowed to touch another person without permission. This type of tort is called battery. Absent proper consent, Texas law recognizes a cause of action for medical or surgical battery.

What is informed consent?

Under Texas law, the informed consent process is a non-delegable duty of the doctor or surgeon. This means that this important conversation can’t be assigned to nurse or other personnel. Proper informed consent includes full disclosure of the risks and benefits of the proposed treatment, procedure, or surgery, as well as weighing the risks and benefits of the alternatives, including doing nothing.

I recently had the opportunity to listen to a surgeon discuss some proposed medical and surgical care with a patient at a major academic hospital in Houston’s Texas Medical Center. Before the attending surgeon came in to see the patient, a resident surgeon (a young doctor still in training) interviewed and did a physical examination of the patient.

When the surgeon walked into the patient’s room, she already had a surgical plan in place. As I observed the surgeon’s presentation, I was impressed with her knowledge and felt that she did an excellent job in explaining the proposed surgery. She went over the proposed surgery in tremendous detail, including of the risks and benefits, all while writing on a handout that she gave to the patient to take home. She entirely omitted, though, any discussion about alternatives to her proposed surgical treatment or the risk and benefits of doing nothing.

As an initial matter, you should never sign an informed consent form until you have a thorough conversation with the doctor or surgeon. Some hospitals and practice groups have a habit of using a nurse to obtain patient consent before there has actually been a proper physician-patient informed consent discussion. This is simply not allowed by Texas law.

Second, if you’re having an informed consent discussion with a doctor or surgeon who doesn’t share any alternatives, including doing nothing, and the relative risks and benefits, you should speak up. The only way that patients can truly provide informed consent is when the physician puts all the options and information on the table.

I don’t believe that either of these poor informed consent practices are malicious, rather I think they’re just sloppy. Remember, these surgeries and procedures are routine to the doctors and surgeons who perform them. It’s their job to get their patients to a comfort level to proceed.

The surgeon whom I observed discussing proposed treatment with the patient did a great job of discussing the risks. She neither overemphasized them or downplayed them, but simply shared facts and percentages. From my experience as a medical malpractice lawyer, though, many doctors have room for improvement in this area.

Signing a consent form never excuses negligence

Any medical procedure comes with some inherent risks. These are bad outcomes that can occur despite appropriate medical, surgical, hospital, and nursing care. For instance, bowel perforation (accidentally cutting a hole in the bowel) is a known complication of any abdominal surgery and generally isn’t considered negligence. Another example is accidentally cutting the recurrent laryngeal nerve in a thyroid or parathyroid surgery, which may paralyze the patient’s vocal cords.

When patients sign a consent form, it means that they understand these inherent risks of a procedure and decide that they are willing to take the risk in proceed with the proposed treatment.

Some patients and family members have the mistaken belief that signing an informed consent form excuses any type of injury that occurs during surgery—even one caused by the mistake or negligence of a surgeon or other healthcare provider. Although medical malpractice defense lawyers often pursue this line of reasoning or argument in cases, it’s not the law in Texas.

Let’s summarize the distinction.

By signing informed consent paperwork in agreeing to proceed with the surgery after proper disclosure of the risks and benefits of the proposed surgery and alternatives means that the healthcare providers may not be held liable for known risks and injuries that are sometimes unavoidable even with proper care. A signed consent form doesn’t exclude a medical malpractice lawsuit for negligence or medical mistakes in the operating room or other care.

If you’ve been seriously injured because of poor hospital, physician, surgical, or nursing care in Texas, then contact a top-rated, skilled Houston, Texas medical malpractice lawyer for help in evaluating your potential case.

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


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