When a doctor fails to obtain a patient's informed consent to a medical procedure and the patient is injured during the treatment, the patient can sue the doctor for the damages and losses he or she sustained as a result. If you have a mental illness or disorder, the defense may try to use that to absolve the doctor of liability. Here's how this can happen and what you can do to push back against this tactic.
Exceptions to Informed Consent
Every treatment a doctor performs requires informed consent from the patient. There are exceptions, though. Treatment in emergency situations does not require informed consent. For instance, a doctor in an emergency room can give you a blood transfusion to save your life, even if you'd normally refused it. In this situation, the urgent nature of the circumstances negates your ability to sue for damages related to lack of informed consent.
However, the law also doesn't require doctors to obtain informed consent from patients deemed emotionally fragile. If the doctor feels that disclosing too much information about the procedure will worsen the patient's condition or the patient is in a mental state where he or she may refuse to be treated at all, the doctor may be allowed to be vague about what the treatment entails and the risks.
The doctor may be given leeway to make medical decisions on behalf of a patient deemed too incapacitated to make them. If the patient doesn't have the capacity to understand the information the doctor is providing him or her about the procedure and the individual doesn't have anyone—friends, family members—who can step in to tell the doctor what to do, the doctor can make choices based on what's best for the patient without obtaining informed consent.
While it's true mentally ill people or those with brain disorders are fully capable of making healthcare decisions, the doctor may attempt to use a mental issue to convince the court you were emotionally fragile at the time. Alternatively, the doctor may argue your mental illness incapacitated you to the point where informed consent could not be obtained. For instance, if you suffer from schizophrenia and weren't taking your medication, the doctor may argue this put you in a mindset where you couldn't either cope with the medical issue or fully understand what was going on.
To fight back against this, you will have to show you did—in fact—have the capacity to understand and comprehend the situation and/or that you weren't too distressed or fragile to make a decision about the treatment. This will typically require having witnesses, such as a caretaker or medical staff, testify to your state of mind at the time the treatment was being discussed. Another thing you can do is show your mental health issue doesn't affect your decision-making abilities. For instance, provide information from experts discussing how the mental illness or disorder typically manifests and its affect on your mind.
Pushing back against this type of defense can be challenging, but it is possible to overcome the tactic. For more information about this issue or assistance with litigating an informed consent case, contact an attorney. Contact a personal injury attorney for more information.