Informed Consent and Medical Malpractice

The Federal Patient Self Determination Act of 1990 requires hospitals to develop policies and procedures that recognize a patient’s right to accept or refuse medical treatment. In short, it means that medical professionals need to obtain informed consent from patients before doing any medical procedure. This is true except in cases of emergency where the patient is unconscious.

Today, prior to starting any treatment a three point process must be obtained from the patient. The first part is the disclosure and explanation to the patient, in language that the patient can understand, about the proposed procedure or treatment, its potential risks and benefits, and reasonable alternatives which may be available. The second part of the process involves: 1) ensuring that the patient understands what has been explained to him or her (to the best of the patient's intellectual capacity); 2) the patient accepting the risks; and 3) the patient giving his or her consent to undergo the procedure or treatment. Finally, the process must be documented.

This is complex and rife with decision making. Any missteps can result in medical malpractice.