Generally speaking, surgical consent basically means that you have given your doctor or surgeon permission to perform a procedure. Although this type of consent does not necessarily need to be in writing, a doctor or surgeon is legally required to obtain some form of your consent (e.g., in writing or oral) before they can proceed with the procedure.
If they fail to get your consent and move forward with the surgery regardless, they may be charged with a criminal offense.
In addition to surgical consent, you must also provide informed consent. This type of consent means that you have been informed of all potential risks and consequences associated with the procedure. Unlike surgical consent, which essentially just says you agreed to the surgery, informed consent assumes that you have a complete understanding of what can happen during or after the procedure.
Both forms of consent are required by law. Thus, you must provide both to your doctor or surgeon before they can legally perform the operation.
A patient may withdraw their consent to surgery at any time prior to when the surgery is set to occur. However, there are certain situations that will allow a patient to revoke their consent even after the surgery has already been performed.
Factors that a court may consider when determining whether or not a patient provided proper consent tend to hinge on the patient’s mental competency. These factors may include assessing whether the patient is or was:
In other words, for consent to be valid, it must conform with surgical consent guidelines, namely, that:
There are certain situations where a doctor can perform surgery without consent. Some exceptions may include when:
Despite these exceptions, doctors and surgeons can still face legal repercussions for not obtaining a patient’s consent before performing the surgery. Oftentimes, a patient will attempt to sue the doctor or hospital for medical malpractice in these types of situations.
For example, a doctor is generally not allowed to perform an additional surgery while the patient is undergoing their scheduled procedure unless an emergency situation arises that threatens the patient’s life.
If the additional procedure was not life threatening, then the patient may be able to recover damages for medical malpractice. It should be noted that the patient must also suffer some sort of injury or harm as a result of the unauthorized treatment, otherwise they will not have a case.
In some instances, a doctor who fails to obtain consent may also face criminal charges. However, the decision of whether to press charges will be left up to the state or local prosecutor.
Some surgery without consent charges include gross negligence, battery, and/or assault. If convicted, the doctor may have to pay fines, could potentially have their medical license revoked, and in extreme cases, might receive jail time or a prison sentence.
As discussed above, the remedies for injuries connected to non-consensual surgery will depend on the facts of a case and the laws of a particular state. The plaintiff must also suffer harm as a result of the non-consensual surgery. Some damages that the plaintiff may be able to recover include:
Also, keep in mind that many states have enacted statutes that impose limits on the amount of damages that a plaintiff can receive for a medical malpractice lawsuit.
The defendant may be able to raise one of the following defenses against a claim where surgical consent is at issue, including:
If you believe that your doctor performed an unnecessary surgical procedure or operated on you without obtaining your full consent, then you should contact a local personal injury lawyer as soon as possible. Your lawyer will be able to determine whether you have a viable claim, can help you prepare and file your case, and can discuss how the laws in your state may affect the amount of damages you receive.
Additionally, your lawyer will know whether the circumstances may have invalidated your consent. Finally, your lawyer will also be able to represent you in court, or alternatively, can negotiate on your behalf in the event of a settlement.
LegalMatch Legal Writer
Jaclyn started at LegalMatch in October 2019. Her role entails writing legal articles for the law library division, located on the LegalMatch website. Prior to joining LegalMatch, Jaclyn was a paralegal and freelance writer. After several years of working for both criminal defense and entertainment law firms, she enrolled in law school. While in law school, her law journal note was selected for first-round publishing, and can be found on various legal research databases. Jaclyn holds a J.D. from Benjamin N. Cardozo School of Law, specializing in both intellectual property law and data law; and a B.A. from Fordham University, majoring in both Journalism and the Classics (Latin). You can learn more about Jaclyn here. Read More
Jaclyn started at LegalMatch in October 2019. Her role entails writing legal articles for the law library division, located on the LegalMatch website. Prior to joining LegalMatch, Jaclyn was a paralegal and freelance writer. After several years of working for both criminal defense and entertainment law firms, she enrolled in law school. While in law school, her law journal note was selected for first-round publishing, and can be found on various legal research databases. Jaclyn holds a J.D. from Benjamin N. Cardozo School of Law, specializing in both intellectual property law and data law; and a B.A. from Fordham University, majoring in both Journalism and the Classics (Latin). You can learn more about Jaclyn here.
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