Most forms of medical treatment involve some level of risk and potential side effects. Under South Carolina (and nationwide) law, healthcare providers are required to acquire informed consent from a patient before they start treating them. Failure to do so is unlawful and opens the healthcare provider and their employer up to liability from a lawsuit or claim for compensation.
What Is Informed Consent, Exactly?
Informed consent consists of more than just a person giving their consent to treatment after speaking with a healthcare provider. It is actually a legal term that requires that several particular elements be met in order to be deemed valid. Specifically, informed consent must involve making a patient aware of the following:
The healthcare provider’s diagnosis of the patient’s problem
The nature and characteristics of the treatment being proposed
The odds of success for the treatment
The risks involved with the treatment
The patient’s prognosis in the absence of treatment
Alternative treatments to the proposed treatment
Additionally, healthcare providers must also advise patients of any other information that any other reasonable practitioner would provide in the same situation.
Lack of Informed Consent and Medical Malpractice
Even if a healthcare provider fails to receive informed consent from a patient and goes ahead with the procedure, the patient does not have a medical malpractice case to bring forward unless an injury occurs.
In other words, a valid medical malpractice case based on lack of informed consent must meet the following two criteria:
The healthcare provider failed to properly inform the patient regarding the treatment AND
The patient was injured but would not have been had the treatment been denied
Determining whether each of those two elements is present and true is often a daunting task that requires the specialized knowledge of procedure and law that only experienced medical malpractice attorneys possess. If the patient would have suffered an injury regardless of the treatment, then neither the treatment nor the failure to explain the procedure properly is the cause of the injury.
Therefore, injured patients should always consult with a skilled medical malpractice lawyer when an informed consent issue arises.
Minors and Informed Consent
Minors receive all manner of non-invasive and invasive treatments, most of which require informed consent. In many cases, though, minors cannot give informed medical consent, as the law does not see them as mature enough to appreciate risks or make reasonable judgment calls. Their parents or legal guardians must, therefore, provide informed consent on their behalf.
However, minors who are 16 years old or older are capable of giving informed consent for non-surgical procedures, such as X-ray testing, scans, and certain cosmetic procedures, for instance.
Exceptions to Informed Consent
The law allows for exceptions to informed consent rules, particularly in circumstances in which getting informed consent would be impracticable or impossible to acquire. Emergencies can do away with the requirement for informed consent if the patient is unconscious or otherwise incapable of giving informed consent, but even the most routine, basic medical treatments, such as taking vitals and other similar actions, can necessitate and be seen as an exception to the law.
Damages for Medical Malpractice Based on Lack of Informed Consent
Damages for lack of informed consent that lead to medical malpractice are typically classified as both economic and non-economic damages.
Economic damages provide victims with compensation for financial outlays directly related to the malpractice, such as medical bills, lost wages, and expenses related to the accident, such as home care assistance.
Non-economic damages, in contrast, deal with non-monetary losses, such as pain, suffering, emotional distress, and a loss of society and companionship, but it is important to note that South Carolina has instituted a cap on non-economic damages in medical malpractice cases. The cap is adjusted annually and currently sits at $545,869 per provider per incident. There is also an overall cap against all healthcare providers and healthcare institutions per person is capped at $1,637,608.
Keep in mind that these caps are slightly different when the malpractice is committed by a healthcare professional working for the government or a charitable organization.
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