Lack Of Informed Consent – Procedures Without Permission
Texas law requires physicians to obtain “informed consent” from patients prior to performing treatment—particularly operations, surgeries, and other practices beyond the scope of an ordinary check-up. Texas Civil Practice & Remedies Code §§ 74.101, 74.104, 74.105, 74.107. One possible scenario leading to lack of informed consent is that a doctor simply proceeds with a procedure without asking for permission. Another possibility is that a doctor gets a patient's consent, but he fails to properly inform that patient of exactly what that consent implies.
For consent to be “informed,” a physician or healthcare provider must “adequately disclose the risks and hazards involved in the medical care or surgical procedure.” § 74.101. Stated simply: a patient needs to know what they're agreeing to. A patient must be made aware of the potential dangers and complications associated with a given procedure so that their consent is properly “informed.” The policy reason behind this is that we want patients to be made aware of all the possible complications and side effects associated with their choices—none of us want to be blindsided. Performing a procedure without the appropriate consent may well constitute medical negligence and result in personal injury, including pain, suffering, and mental anguish.
If you believe a treatment may have been performed upon you without your informed consent, having your case analyzed by a personal injury lawyer is a great way to understand the legal factors at play. We would be happy to provide you a free consultation, and we encourage you to call us at (817) 424-5999.
Texas law recognizes a cause of civil action called “medical battery.” You have probably heard of the terms “assault” or “assault and battery.” Battery is “intentionally, knowingly, or recklessly caus[ing] bodily injury to another,” or “intentionally or knowingly caus[ing] physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.” Texas Penal Code §§ 22.01(a)(1), 22.01(a)(3). However, in order to pursue a lawsuit for battery, you must prove the incident caused you injury and/or damages. Accordingly, if you have suffered physical or severe emotional injury after being operated upon or otherwise treated without informed consent, or if a loved one has suffered a wrongful death, you may have a viable claim for medical battery.
As a Texas Court of Appeals explained in 2003, a claim for medical battery “generally involves the claim that a doctor performed acts on the patient without consent.” Baribeau v. Gustafson, 107 S.W.3d 52, 61 (Tex. App.—San Antonio[4th Dist.] 2003). However, the Supreme Court of Texas clarified that “failure to obtain consent does not automatically result in liability.” Murphy v. Russel, 167 S.W.3d 835, 838 (Tex. 2005). The Court reasoned that “there may be reasons for providing treatment without specific consent that do not breach any applicable standard of care.” Id. For example, should doctors discover during an unrelated operation a large, cancerous tumor that they could easily remove, it might not breach the standard of care for the doctors to go ahead and remove it without the patient's permission. The way Texas law decides whether a standard of care was breached is through expert testimony—by asking other doctors. Id.
Why Medical Battery, Not Just Battery?
If you're like me, one of your first thoughts might be, “Wait a minute! If the patient didn't consent to the treatment, then why would this be a medical battery claim and not just plain-old battery?” Well, in 2005, the Supreme Court of Texas found that situations arising from the overarching context of treatment are generally still beholden to the requirements of the relevant medical battery law. Id. The court explained that simply trying to cast these issues as outside the healthcare context will not medical malpractice law inapplicable. Id. at 838.
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If you would like to speak to a personal injury law firm with experience in medical malpractice lawsuits, we want to talk with you. Call us at (817) 424-5999 or send us a message through the contact form on this website. We can help you understand your legal situation and guide you through your options.