Monday, November 26, 2012

Does Signing A Consent Form Prohibit You From Bringing An Ohio Medical Malpractice Claim?

"Well, the doctor may have screwed up but the patient did sign the consent form, so....."

This is a common thought amongst jurors or focus groups in evaluating malpractice claims. After all, everyone has to sign the standard medical "consent form" for any procadure whether it's a colonoscopy or bypass surgery. But as ESPN college football analyist Lee Corso says, "not so fast, my friends...."

Medical negligence claims in Ohio can be divided into two basic groups. One is "informed consent." Basically, this means that every physician has the obligation to inform you as a patient of all the material risks and benefits of any procedure, so you can make an intelligent decision as to whether to go through with the procedure. The "risks and benefits" of the procedure are usually covered through a combination of discussions with the physician, and the medical consent form.

I don't care how minor the procedure, the consent form usually has some standard or "boilerplate" acknowledgment that the procedure can potentially cause bleeding, infection, paralysis, or even death. You could probably find that language in a consent form for removal of a hangnail. This is standard "CYA" language that protects a physician from a claim that he/she did not  provide proper "informed consent" before the procedure.

But Ohio law makes it crystal clear that giving proper informed consent does not excuse the physician from performing the procedure in a negligent manner. Some examples illustrate this point. For example, if you sign a consent form for amputation of your right leg, the physician is still negligent if your left leg is inadvertantly cut off. Similarly, if a foreign object is left inside your body after surgery and causes major injury or death, the physician or hospital is negligent, and can't hide behind the consent form that warns the patient of the risk of injury or death.

Likewise, if an anesthesiology consent form advises of the risk of brain damage or death, the anesthetist can still be held liable if he/she allows a patient to lapse into anoxic brain damage due to a failure to properly monitor the patient's breathing or respiratory status during or after the procedure.

Bottom line: a consent form does not give a physician or hospital a license to perform the procedure in a negligent manner. In other words, you as a patient can't "sign off" on the physician's negligence.      

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