Brien Roche has tried hundreds of jury cases to conclusion. He has had multiple million-dollar verdicts and settlements. He has authored three well-recognized legal texts, two of which deal exclusively with Virginia law. One of those legal texts is Objections. This is a book outlining how objections may be made at trial and in the course of a legal proceeding. It is published by the Virginia Law Foundation which is the continuing legal education arm of the Virginia State Bar. Virginia Torts Case Finder is an 800-plus page compendium of Virginia tort law. Law 101 is a layperson’s guide to the law. It is published by Source Books. It has sold over 30,000 copies. Reach out to an experienced medical malpractice attorney as soon as possible.
Failure to Warn Medical Malpractice Cases
A failure to warn is a component of what is called an informed consent claim. Informed consent means that the patient has been informed or warned about what the risks are of the procedure to be performed. The patient has also been informed of alternatives to this procedure. The patient has then granted their consent to have the procedure performed.
The burden is on the doctor to provide the patient with all of the information about the treatment and its risks.
The issue in these cases becomes whether or not the plaintiff would have given consent if they had been properly informed. The issue is not whether a reasonable person would have given consent. It is specific to this plaintiff. As such, the standard is a subjective one. It is not an objective one.
These types of claims are a type of medical malpractice action. Prior to rendering treatment to a patient, the doctor has to obtain informed consent.
Failure to Warn – Sign It and Shut Up
In most cases, the patient is presented with a consent form moments before the surgery is performed. The patient is expected to sign it. Typically, the patient doesn’t have time to read it. Sometimes the doctor may have fully explained the risks and alternatives beforehand, but sometimes the doctor has not done that.
In an ideal world, what should have happened is that the patient should have been given all of the disclosures and then given an opportunity to think them through and then come back to the doctor’s office at a later time to sign the informed consent form. Typically that is not done.
Hospitals Have Consent Navigators
Hospitals in an operating room have one person whose task is to make sure that every patient before undergoing a procedure has signed a consent form. That consent navigator is not necessarily concerned about whether the patient read the form. They’re not concerned about whether or not the patient understood the form. The navigator is typically not going to explain the risks and alternatives of the procedure. The navigator is simply interested in getting a signature.
The Basic Elements of an Informed Consent Claim
Informed consent claims are premised on those two words, i.e., informed consent. The information about the risks and alternatives has to be given. The patient has to consent to it.
To prove such a claim, the plaintiff has to prove that information was omitted, the information was important, the patient would have chosen a different course, and the treatment was a cause of harm.
What Does it Mean for Information to be Important?
If the procedure itself is very dangerous and the alternative is not, that needs to be disclosed. That is especially the case if the chances of a good outcome are about equal.
If the doctor has a high failure rate for this procedure, that may be important.
If the doctor has a financial conflict, that may be important. Let’s say that the doctor is the inventor of the particular medical device to be installed. The doctor is benefiting from the use of that medical device. That fact needs to be disclosed.
How Consent Forms Work
Consent forms are frequently used by the defendant in a medical malpractice case to show that the plaintiff accepted the risk of failure. The plaintiff does not accept the risk of failure. The plaintiff does not accept that the doctor was negligent. A consent form is only relevant if there is an informed consent claim in the case. If there is no informed consent claim in the case, the consent form is probably not relevant. It makes no difference what the patient consented to. The patient clearly did not consent to the doctor being negligent.