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Compensation For Failure to Obtain Informed Consent
How to Claim For Medical Negligence
Patients should be given all the information they need to understand a surgical procedure or medical treatment and may claim compensation for failure to obtain informed consent. This means if the patient suffers harm directly linked to this failure, they may want to start a clinical negligence claim.
Informed consent is regarded as the cornerstone of ethical medical practice. It ensures that individuals understand all the risks, benefits, and alternatives to medical treatments or procedures before agreeing to them. So, failure to obtain informed consent doesn’t just breach ethical duties – but may also lead to a claim.
So, if you or a loved one underwent a procedure without being properly informed and suffered harm as a result, you may be entitled to compensation.
We partner with experienced lawyers who offer a ‘No Win, No Fee’ option and who can advise you whether you have a valid case – at no cost to you.
What is Informed Consent?
Informed consent means that you have been given all relevant information about a proposed treatment or procedure. Importantly, you should also be told in a way that you fully understand the information.
This should include potential risks, benefits, alternatives, and the consequences of doing nothing. This is so that you can make a voluntary and educated decision.
What Constitutes a Failure to Obtain Informed Consent?
A failure to obtain informed consent may arise when:
- A patient was not informed about significant risks;
- Alternative treatments were not discussed;
- The patient was misled, or information was withheld;
- Consent was obtained in pressured or rushed circumstances, or
- The patient lacked the capacity to give consent and this was not appropriately addressed.
It’s important to note that written consent forms are not sufficient on their own. Verbal discussions are key, and documentation must reflect that proper and accurate information was provided.
When Can Failure to Obtain Informed Consent Be Considered Medical Negligence?
For a failure of informed consent to qualify as medical negligence, three key legal elements must be satisfied:
Duty of Care
The healthcare provider owed a duty of care to the patient (which is a given in any clinical relationship).
Breach of Duty
The provider failed to meet the standard of care by not informing the patient of material risks or alternatives.
Causation and Harm
You must show that you would not have consented to the treatment if you had been properly informed. Additionally, that you suffered harm or injury as a direct result of undergoing the procedure.
It is important to understand that it’s not enough to show that information was lacking. You must have suffered actual damage and be able to show that a different choice would have been made if you had been properly informed.
Examples of Claims Involving Lack of Informed Consent
- A patient is not told that a surgical procedure has a 10% risk of permanent nerve damage. They suffer nerve damage and argue they would have opted for non-surgical alternatives had they known.
- A person with a language barrier is not provided an interpreter, signs a consent form they cannot read, and is later harmed by the procedure.
In both these examples, the claim depends on proving that the patient would have made a different decision if properly informed.
Steps to Making a Medical Negligence Claim
If you believe you have suffered due to a medical procedure carried out without proper informed consent, here are your next steps to start a negligence claim:
Obtain Medical Records
Request a full copy of your medical records from the hospital or GP surgery. You are entitled to these records.
Seek Legal Advice
This is a complex area of law, so contact a solicitor who specialises in clinical negligence. The sooner the better, as it is easier to gather evidence soon after the event.
Your solicitor will assess the case and determine if there is a strong enough case to move forward.
The time limit to bring a claim is generally three years from the date of injury or the date you became aware of it.For children, the three-year period starts on their 18th birthday. For those lacking capacity, there may be no time limit unless they regain capacity.
Claim For Compensation
Compensation depends on the severity of the harm or injury caused. Damages in informed consent claims usually cover:
- General damages – for pain, suffering, and loss of amenity.
- Special damages – including loss of earnings, medical expenses, care costs, and adaptations to housing or transport if required.
Get In Touch
If you believe you were not properly informed about the risks or alternatives to a procedure, and you suffered as a result, Our team will support you and your family through the claim process with care and understanding. We only work with lawyers who will consider all aspects of your case and who operate on a ‘No Win, No Fee’ basis.
Contact Jefferies Claims today at 0333 358 3034. Alternatively, complete our online contact form to arrange a free, no-obligation telephone consultation with a member of our expert team.