Informed Consent in Florida Medical Malpractice Cases

When a patient goes to see their primary care physician, a specialist, or goes into the emergency room for immediate care, they are relying upon the expertise of their respective medical providers to diagnose what is wrong with them, if the cause of the illness or other medical condition is not obvious, and to advise them of the proper course of treatment.

In some cases, a doctor will say they will not know the full extent of the medical condition until they perform some type of exploratory surgery or diagnostic test, and then at that point will know the best course of treatment.  There is nothing wrong with this type of approach and it is often necessary to successfully treat a patient, or even save a patient’s life.  However, as our Miami medical malpractice injury lawyers can explain, it is the responsibility of the doctor to tell the patient all of the expected possibilities and explain the different options that may present themselves during the course of exploratory surgery. This is not to say a doctor is required to be perfect, but they should know what they are likely to see when they perform surgery, and should know the most likely findings, and even some less likely findings. It is the doctor’s responsibility to prepare a patient for all reasonable foreseeable outcomes and discuss what they will do depending on what they discover.

This is not only a good idea, but it is required under the applicable standard of care when preparing a patient for surgery.  They must also get the patient’s consent for each of these foreseeable procedures. There is the possibility something truly unexpected will occur and this is why the will often ask the patient to select a person to serve as a proxy for medical decisions when a person is incapacitated, or oven get a blanket consent for unexpected emergencies. While this is okay, if they are truly unexpected exigencies that arise, if a competent surgeon, should have anticipated these occurrences, and damage results, it may be the basis for filing a medical malpractice lawsuit.

According to a recent news article from the Florida Record, one patient has filed a lawsuit claiming medical malpractice associated with his fistulogram that did not go according to plan.  According to plaintiff’s allegations, he gave consent to do the fisulogram, and was told there was the possibility of angioplasty being necessary.  He alleged he was not advised did not consent to the placement of any stents in his body during the procedure.

In his lawsuit, he alleges he was not properly diagnosed and the procedures that were performed were not done in a proper manner.  He further alleges doctors did not accurately diagnose an issue with a stent, that was not only placed in his body, but his doctor failed to immobilize it so it was migrating through this system causing serious injuries. It should be noted defendant’s have denied liability in connection with this medical malpractice action and intend to fight the allegations.

In some cases, there can be a medical malpractice case brought under a theory of negligence, but if there was a complete lack of consent, there may be a possibility of bringing and case under the intentional tort of battery.  These cases were popular in the 1990s after the string of highly-publicized cases in which doctors operated on, or even amputated, the wrong leg.  Even though a patient gave permission to do an amputation, if the consent was on the left leg, and a doctor amputated the right leg, there was no permission for this operation so it could be considered an assault an battery.

Contact the South Florida personal injury attorneys at Halberg & Fogg PLLC., Attorneys at Law, by calling toll-free at 1-877-425-2374. Serving West Palm Beach, Miami, Tampa, Orlando and Fort Myers/ Naples. There is no fee unless you win.

Additional Resources:

Patient alleges further injury after undergoing surgery, July 3, 2018, By Noddy A. Fernandez, Florida Record

More Blog Entries:

Misplaced Catheter Blamed in Medical Malpractice Lawsuit, June 23, 2018,West Palm Beach Medical Malpractice Attorney Blog