Generally, before a surgical procedure, a physician will explain the risks, benefits, and potential side effects to the patient before obtaining his or her consent to proceed. If a doctor neglects to, though, and the patient subsequently suffers harm, there may be grounds to pursue a claim for lack of informed consent. Recently, a New York court issued an opinion discussing a plaintiff’s burden of proof in a lack of informed consent claim in an orthopedic malpractice case. If you were injured by a doctor’s failure to obtain your informed consent prior to surgery, you might be owed damages, and you should speak to a seasoned Syracuse medical malpractice lawyer to determine your rights.
The Plaintiff’s Harm
Allegedly, the defendant performed knee surgery on the plaintiff. She subsequently developed drop foot due to a metal fragment that was left by her knee. She filed a lawsuit against the defendant, alleging lack of informed consent and medical malpractice claims. The defendant moved for dismissal via summary judgment, but the court denied his motion. The defendant then appealed.
The Burden of Proof in Lack of Informed Consent Claims
On appeal, the court explained that while the defendant established a prima facie right to judgment as a matter of law on the medical malpractice claim, the plaintiff set forth an expert affidavit in opposition of the defendant’s motion that adequately demonstrated a material dispute of fact existed that required a trial. Thus, the trial court ruling as to the medical malpractice claim was affirmed.
As to the informed consent claim, the court state that lack of informed consent is a separate cause of action that requires proof of facts not contemplated by an action that is merely based on allegations of negligence, in other words, to establish a claim for lack of informed consent, the plaintiff must show that the person providing the treatment in question failed to disclose alternative treatments or inform the plaintiff of the reasonably foreseeable risks of harm associate with the treatment, which a reasonable practitioner would have disclosed in similar circumstances.
The plaintiff also has to prove that a reasonably prudent person in the same position would not have undergone the treatment had he or she been fully advised of the risks and that the lack of informed consent proximately caused the harm suffered. The court explained that the mere fact that a plaintiff signed a consent form does not, in and of itself, establish a defendant’s right to judgment as a matter of law. In the subject case, the court found that while the defendant established its right to judgment as a matter of law, the plaintiff demonstrated an issue of fact existed as to the claim. As such, the ruling as to the lack of informed consent claim was upheld as well.
Speak to a Skilled Syracuse Attorney
Most surgeries have risks, and patients have a right to be fully advised of the potential consequences of a procedure before agreeing to undergo it. If you were harmed by a doctor’s failure to obtain your informed consent before a treatment, you could be owed compensation, and it is advisable to speak to an attorney about your options. At DeFrancisco & Falgiatano, LLP Personal Injury Lawyers, our skilled medical malpractice attorneys inform you of your potential claims and aid you in pursuing the best outcome possible in your case. You can reach us by calling 833-200-2000 to schedule a conference.