Informed Consent and Medical Malpractice in Florida

file0001812797650Despite medical professionals having to endure strict educational and internships requirements before entering the profession, instances of medical malpractices continue to occur across the nation. Per the National Academies, medical malpractice kills more Americans annually than automobile accidents. Countless more victims survive with lifelong disabilities.

As you may know, medical malpractice occurs right here in the sunshine state, too, and in high numbers. As a matter of fact, Florida ranks in the top five states for medical malpractice payouts.  As a way of shielding against such claims, medical providers are required to obtain their patients’ informed consent before engaging in a medical procedure. This post is aimed at clarifying this somewhat complex concept.

If you or a loved one is injured at the fault of a medical provider, such as a doctor, hospital, or clinic, it is imperative that you hire an attorney for your case. The Florida medical malpractice lawyers at Gerson & Schwartz, PA are here for you.

When Does Informed Consent Take Place in Florida?

Per Florida law, informed consent takes place when a patient is informed of and understands the purpose, benefits, and potential risks relating to a medical or surgical procedure, including clinical trials, and then expressly agrees to receive such treatment or participate in the trial.  Informed consent further requires a patient or the patient’s responsible party to sign a statement confirming that the patient understands the risks and benefits of the medical procedure.

If a medical provider begins treating a patient, without first obtaining the patient’s informed consent, the medical provider may be held liable for any damages or injuries to the patient during the treatment. The injured patient may hold the medical provider liable for such injuries. Yet, on the other hand, if the medical provider was able to obtain his or her patient’s informed consent, the medical provider may be shielded from ensuing liability.

What are the Requirements for Informed Consent in Florida?

Per Florida Medical Consent Law Section 766.103, informed consent in the medical setting requires the medical provider to:

  • Explain the nature of the medical procedure and what the medical provider intend to correct;
  • Explain the risks related to the particular medical procedure; and
  • Offer various alternatives to the particular medical procedure and their outcomes including the option of doing nothing if there are no available alternatives.  

Informed consent exists when the patient expressly agrees to these conditions.

However, there are various exceptions to the informed consent requirement. For instance, if a patient, who did not give his or her informed consent, would have reasonably undergone such medical procedure had he or she been advised by the medical provider in accordance with Florida’s informed consent law, the medical provider will be protected as if he obtained such patient’s informed consent.

Please note that the informed consent requirement still applies in emergency situations pertaining to cogent, conscious, adult patients. In other situations, a patient’s informed consent will be presumed. Florida law recognizes that requiring the informed consent law before every medical procedure would significantly undermine the safety, health, and life of a patient requiring emergency treatment while unable to provide informed consent for such treatment. Similarly, in regards to children in emergency situations, medical providers are not required to obtain consent from the child for the medical treatment.

Additionally, another exception exists where the patient is deemed mentally incompetent to make his or her own healthcare decisions. In this situation, there may be a presumption of informed consent. In this scenario, if the patient has no guardian or other authorized person, the medical provider may treat the patient without obtaining his or her informed consent.

Yet another exception exists when there is an unconscious adult involved. There is no requirement to obtain a patient’s informed consent in emergency situations when the patient is unconscious. Here, if the likelihood of harm because of a failure to treat the patient reasonably appears to be imminent and exceeds any threats of harm from the treatment itself, the medical provider is allowed to treat the patient without first obtaining his or her informed consent.

Get Legal Help

If you or a loved one suffered harm at the fault of medical provider, it is critical that you hire an experienced medical malpractice attorney. The Florida medical malpractice lawyers at Gerson & Schwartz, PA are here to take on your case. Contact our attorneys today at 305-371-6000 or via email at info@gslawusa.com to schedule a FREE consultation.  

(photo courtesy of Kenn W. Kiser)

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