The Issue of Informed Consent in Florida Medical Malpractice Cases

Before a doctor is able to perform any kind of non-emergency medical treatment, she must first obtain the patient’s consent. However, since the medical field can be so complex and the stakes so high, courts have held that physicians must do more than simply have a patient check a box indicating consent. Generally speaking, a doctor must fully inform the patient of the risks involved with the procedure in order to obtain informed consent. In Florida medical malpractice cases, if a doctor fails to obtain informed consent, and the patient suffers an injury as a result, the doctor may be liable under a theory of medical battery.

Surgical ErrorFlorida law imposes several requirements that a plaintiff must overcome before establishing liability. For example, even if the doctor failed to obtain informed consent, if the medical procedure was one that a reasonable patient would have consented to undergo, the doctor may not be liable. A recent case from nearby Oklahoma presented an interesting issue for the court to consider:  whether the patient must be informed of who will be assisting during the surgery.

The Facts of the Case

The plaintiff was a patient of the defendant doctor. During the course of the plaintiff’s treatment, the defendant recommended that the plaintiff undergo a total laparoscopic hysterectomy. The plaintiff agreed and scheduled the surgery.

Prior to going into surgery, the plaintiff signed a medical consent form, authorizing the doctor to perform the surgery. The form also authorized the doctor to have assistants help with the surgery. However, the area where the names of the assistant should have been listed was left blank.

The doctor hired a non-doctor assistant with whom she had worked numerous times in the past, and the surgery was scheduled. During the surgery, the plaintiff’s ureter was severed. While it was unclear who severed the plaintiff’s ureter, it was undisputed that both the doctor and the assistant performed significant portions of the procedure.

The plaintiff filed a medical malpractice claim, arguing that she never provided informed consent for the procedure because she was not made aware that a non-doctor would be performing parts of the procedure. This presented the court with an issue that it had not confronted in the past.

The court began its analysis by noting that a patient has the right to choose their own medical care. From there, the court explained that by failing to inform a patient that a non-doctor assistant will be performing significant portions of the procedure, a doctor prevents a patient from obtaining critical information that is relevant to their decision of whether to proceed. Thus, the court determined that the doctor should have informed the plaintiff that a non-doctor would be performing significant portions of the procedure, and the doctor’s failure to do so exposed her to liability.

Have You Been a Victim of Negligent Medical Care?

If you or a loved one has recently undergone a medical procedure that you believe was negligently performed or to which you did not fully consent, you may be entitled to monetary compensation. The dedicated South Florida medical malpractice attorneys at the law firm of Friedman, Rodman & Frank have extensive experience representing clients across South Florida in all types of medical malpractice and medical battery claims. Call 877-448-8585 to schedule a free consultation with an attorney today.

More Blog Posts:

Court Limits Truck Owner’s Liability, Finding that He Loaned Truck to At-Fault Driver, South Florida Personal Injury Lawyers Blog, published July 6, 2017.

Who Is Responsible in Florida When Someone Causes an Accident Using a Borrowed or Stolen Car?, South Florida Personal Injury Lawyers Blog, published June 19, 2017.

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