Consent to a procedure is not consent to negligence.
It would be unusual to go to a doctor’s office or especially to have a procedure or surgery done and not sign a bunch of forms, including a consent form. While it may seem like you are signing away everything (that is, if you have the chance to read them at all), in Virginia, consent forms have little to do with most medical malpractice claims.
Types of Claims
Medical malpractice is a broad term that includes all sorts of negligent acts by health care providers. In Virginia, it has even been interpreted to include breach of contract claims.
Some of the most commonly litigated medical negligence claims are for failure to diagnose; misdiagnosis; and failure to properly perform a surgery or procedure. You can make a claim that a doctor failed to properly obtain informed consent, but we see relatively few cases of that sort that would make sense for the patient to pursue.
Practical Effect of Consent Forms
Consent forms are intended to inform you of the risks, benefits, and alternatives of a particular surgery or treatment. They should be part of the informed consent process with your doctor, which should also include a discussion during which you have the opportunity to ask your doctor questions.
In theory, your signature then documents that process occurred. It does not mean you consent to your doctor causing any of the complications through his negligence.
The Supreme Court of Virginia has protected this distinction by holding that evidence of a patient’s consent to surgery is not admissible in medical malpractice claims unless the patient claims improper informed consent. See Fiorucci v. Chinn, 764 S.E.2d 85 (2014); Wright v. Kaye, 593 S.E.2d 307 (2004).
Remember, consenting to undergo medical treatment is not (and should not be) consenting to receive negligent care.
Lauren E. Davis at Frith & Ellerman Law Firm in Roanoke, Virginia is an experienced personal injury, medical malpractice, and nursing home negligence attorney serving Virginia.
Learn more about our services at https://frithlawfirm.com/ or call us at (540)985-0098.