You went in for a medical procedure. As always, your doctor explained the risks of the procedure to you, noting that some risks are more likely than others to materialize. You understood what you were reading and being told. Maybe you had a spouse or friend with you who also understood. You signed the forms. Even so, you never really expected anything to go wrong.
But when you woke up, or perhaps weeks or months after your surgery, you realized that something had, indeed, gone wrong. Does signing those forms mean that you now have no recourse against your Oregon doctor or medical facility for medical malpractice?
Informed consent does not mean that you need to be told every possible outcome of a procedure, no matter how remote. And just because a remotely possible outcome materializes does not mean that medical malpractice has taken place. There are rare negative outcomes that are not caused by anyone's fault.
However, there are times that the actions of a surgeon, nurse, or anesthesiologist are negligent and do cause harm. In those situations, the fact that you signed a consent form does not insulate your medical team or hospital from liability for your injuries. If your doctor did not act as a reasonable doctor would under the circumstances, and you suffered damages as a result, that is the definition of medical malpractice. Simply put, no one consents to medical malpractice.
There are also situations in which a patient consents to a certain procedure, say, a tubal ligation, and another procedure is performed, such as a hysterectomy. No matter how thorough the consent form you signed, if the procedure that was performed was not the one you consented to, you probably have an action for medical malpractice. An exception to this would be if, in the course of the procedure you consented to, your doctor discovered a condition that required immediate treatment and it was not medically appropriate to delay that treatment in order to allow you to consent to it.
Rarely, but more often than you might think, a patient consents to a procedure on one body part and the procedure is performed on the other, such as surgery on the left eye instead of the right. Unsurprisingly, this would also give rise to a malpractice action.
Sometimes patients who were victims of medical malpractice also have a cause of action for a lack of informed consent. This claim can be independent of the medical malpractice claim, as it requires only: 1) that the doctor failed to adequately present the risks and benefits of the recommended treatment and of any alternatives; 2) that had the patient been adequately informed, he or she would have refused the treatment; and 3) that even though the treatment was appropriate and carried out with adequate skill, it contributed substantially to the patient's injury. In other words, there may be damages from lack of informed consent even if medical malpractice was not otherwise committed.
As with medical malpractice, if you have a claim relating to informed consent, you have only a limited time to pursue it. To learn more about informed consent or medical malpractice in Oregon, and whether pursuing a case is right for you, contact us to schedule a free consultation with one of our attorneys.
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