The Importance of Communication and Consent in a medical negligence case

Get in touch: 1800 770 780

How can we help?

Needing medical treatment, particularly that which is invasive in nature and will require a hospital stay, can be quite overwhelming. There are many concerns that patients have beyond their physical need to be treated. However, the risks involved in the physical procedure(s) that a patient will undergo, coupled with the projected outcome, is information that must be communicated accurately and effectively by all physicians.

The question is what information is your physician expected to relay to you about your medical/surgical procedure and the ancillary risks associated with your treatment. Initially, the following information must be carefully and clearly communicated to all patients;

  • An explanation of your diagnosis
  • The proposed course of treatment
  • Possible side effects
  • Identifiable risks

All of this information is to be discussed with the patient in terms that use ordinary language that is understandable to the average person. In addition, any and all questions the patient may have relating to these and other subjects must also be answered in the same vein.

Once this candid conversation has taken place it is imperative that the physician have the patient’s consent to the proposed medical treatment. Consent from a patient can take the form of verbal or written. It must be freely given and valid, meaning the person giving consent for the procedure has the mental and physical capacity to do so.

A patient must give explicit consent to the following procedures;

  1. Physical examinations
  2. The taking of blood or bodily fluids
  3. Testing; including all forms of imaging
  4. The use of intravenous drugs; including but not limited to antibiotics, painkillers, chemotherapies,
  5. Vaccines etc.
  6. Giving any medications orally or via injection

In some emergency situations, it might be impossible to get consent from a patient. Obtaining consent under these circumstances is called implied consent. The first type of implied consent can be given by a patient who is not verbal. For instance, if a patient can show they understand and then gesture their consent via a nod, or a blink or a hand movement, a physician can proceed.

However, in this situation, it is imperative the physician be able to truly identify that the patient understood the gravity of the situation, the risks involved and the procedure that is about to occur, before relying on implied consent. The second type of implied consent is given by a relative or a health care proxy. This type of consent is one which the patient has predetermined as acceptable either through their relationship with the individual giving consent i.e. a parent, guardian or spouse or via a written document, such as a health care proxy.

One of the most overlooked areas of informed consent relates to those risks that are inherent in entering a hospital environment. These are the lesser recognised hospital-acquired infections including but not limited to;

  • Catheter oriented infections
  • Intravenous infections at the site of the local entry point or sepsis oriented infections
  • Surgical wound infections
  • Causative organisms such as a Strep infection

These types of infections can be reduced by preventing antibiotic resistance from the unnecessary or overuse of antibiotic medications, and for staff and visitors to use proper hygiene practices to help contain the spread of infectious organisms.

With the implementation of data collection on the frequency and type of hospital-based infections, these types of secondary infections can be reduced. Data can be used to pinpoint the frequency and duration of each type of hospital-based infection allowing doctors and nurses to review sanitary procedures at various hospitals. In addition, with the gathering of this information, patients can be better informed of these ancillary risks and educated as to how to keep such risks to a minimum.

Failure to warn of any or all of the above mentioned medical risks can leave patients with inadequate information and cause them to make poor decisions about their health care. And, while physicians are impugned with the responsibility for giving all of the pertinent information about all contemplated medical procedures, and to obtain consent for the same, sometimes there is a breakdown in communication. In these instances, patients can make decisions that cause them to experience medical results that create a worse situation than they started out with.

These poor outcomes can be mitigated when patients take a proactive stance when it comes to giving knowledgeable and informed consent for their medical procedures. It is important for patients to advocate for themselves by researching their conditions and the risks associated therewith. Once patients are informed, they can proceed to ask the necessary questions that will help them gain more relevant information specific to their condition and medical treatment or procedure. In addition, a patient that is well versed in their medical needs can make more well-informed choices from the options presented to them.

In the event that you have experienced a poor medical outcome due to being improperly informed of the type of procedures, treatments, risks or possible negative outcomes of your medical needs, please contact one of our experienced medical negligence lawyers at Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.

Just ask us a question

We are always ready to help you.