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Medical Malpractice Newsletter

Avoiding Liability for Refusal of a Recommended Medical Procedure

Medical malpractice is largely governed by state law and case law precedent. Thus, generalizations must be checked against the applicable state law standards. One commonality, however, among most jurisdictions, is the notion that a patient may sue a health care provider if there was a lack of “informed consent.” In other words, if a patient undergoes a medical procedure and suffers from an unexpected complication, he should consider filing a civil action based on the theory that the procedure’s potential consequences were not fully explained.

Informed Refusal

On the other hand, when a patient refuses medical recommendations and, as a result, suffers injury, he may sue for negligence based on a lack of “informed refusal.” Although there are many jurisdictional distinctions in this area of the law, patients who seek to bring such an action should, at minimum, be aware of some of the basic elements of a claim based on lack of informed consent.

Patients generally have the right to refuse a physician’s medical recommendations, such as specific treatment or home-care instructions. Sometimes they exercise this right and refuse treatment out of reluctance or fear of the recommended care. Whatever the reason, if a patient refuses treatment and the practitioner fails to directly discuss the possible and probable consequences, the patient’s ability to bring a successful malpractice action is increased.

Determining Whether Informed Refusal Was Effective

Patients who wish to bring an action should determine if the informed refusal was effective. They may do this by recalling if the physician explained and documented the following:

  • The recommended treatment, procedure, test, etc.
  • The reasons for the recommendation
  • The risks that may result from refusal

The patient should have been encouraged to discuss such issues and the reasons for refusal. If a patient indicated that he did not really understand the possible consequences of the refusal, the ramifications of refusing treatment should have been further explained until the patient understood. If a physician does not take the time to address these types of concerns, a patient will have a better chance of being successful in such an action for lack of informed refusal.

It should be noted, however, that even when the elements of informed consent are satisfied (and the practitioner had been thorough and diligent) the physician is not necessarily free from liability. Although it may be a weaker argument, the patient may still assert that he would have acted differently had the practitioner more clearly explained the consequences of refusal.

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