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Failure to Warn Medical Malpractice Cases

When you seek medical treatment, a doctor or other licensed health-care professional might offer you one or more options. They must ensure you thoroughly understand the risks and benefits before you agree to receive a treatment or procedure.

If you consented to medical treatment but did not understand its potential consequences, you might have grounds to bring a failure to warn medical malpractice case. A seasoned attorney could evaluate your situation and prepare a viable claim.

failure to warn medical malpractice

Defining Informed Consent

Before a physician can provide medical treatment, including surgery, they must obtain the patient’s informed consent. Ohio Revised Code § 2317.54 describes what informed consent means in the legal context.

A physician must tell a patient what he or she intends to do and why. A doctor must explain what he or she hopes the procedure will accomplish and all the reasonably known risks of undergoing the procedure or treatment. If a treatment is surgical, a doctor must tell a patient the name of the surgeon performing it.

A patient must have an opportunity to ask questions and have them answered. A person must then sign a form acknowledging that he or she understands the risks and benefits of a treatment, a doctor answered his or her questions, and that he or she consents to undergo a treatment despite the risks. If a patient never signed this form, a failure to warn medical malpractice claim is possible.

Alleging Failure to Warn in a Malpractice Lawsuit

When a patient is unhappy with the treatment’s results and brings a medical malpractice lawsuit, a physician could use the informed consent document in his or her defense. A doctor’s attorney might argue that a patient understood the risks and agreed to the treatment anyway.

A patient’s medical malpractice lawyer could claim an informed consent was defective, leading to a failure to warn case. A legal representative might argue that a patient’s English was insufficient for him or her to grasp the meaning of a doctor’s warnings. In other cases, a doctor might not have emphasized or mentioned the specific harm a patient experienced. A doctor might have presented statistical data that does not reflect his or her experience and expertise. A patient could have felt pressure to sign the informed consent document even though he or she still had unanswered questions.

Many doctors include a summary of the informed consent conversation in a patient’s medical records. A legal professional and a medical expert could review the document to confirm whether the doctor mentioned a specific risk or issue. If the notes are unclear or there is no mention of a particular outcome a patient suffered, the medical records could strengthen a patient’s failure to warn case.

Proving a Failure to Warn was Negligent

A patient who wishes to collect compensation from a physician for failing to warn about a specific outcome must establish the medical malpractice case by a preponderance of the evidence. The preponderance standard means presenting enough proof to demonstrate a patient’s version of events is likely true.

Legal representation must prove an informed consent conversation did not provide a patient with the necessary information. Perhaps a doctor glossed over a specific risk, did not mention it all, or presented data based on other physicians’ outcomes rather than his or her own. A patient also must prove that a reasonable person would not have chosen the procedure, knowing the actual risk. Finally, the person must prove that the outcome caused harm.

When a patient has evidence supporting all these claims, he or she could receive reimbursement for lack of informed consent. A patient cannot hold a hospital or other facility responsible for a physician’s failure to get informed consent unless a doctor is an employee. Most surgeons have operating privileges at the hospitals where they perform procedures but are not employees.

Rely on an Attorney to Handle Failure to Warn Medical Malpractice Cases

If you do not feel your physician adequately explained the risks of a procedure or treatment, you could bring a lawsuit against a doctor for failing to warn you. Doctors must get your informed consent before doing an operation or starting treatment and are negligent if they fail to do so.

The law provides only a short window to take legal action, so consult an attorney as soon as possible. Schedule a free consultation about failure to warn medical malpractice cases today.