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Medical Negligence: Informed Consent/Lack of Disclosure

A physician must exercise their best judgement when choosing a patient as an appropriate candidate for surgery. Physicians now must obtain patient’s informed consent prior to surgery and must do so by explaining the reasonably foreseeable risks, benefits, and alternatives associated with the procedure. Over the years the common law requirement of “consent” to “informed consent” has occurred. It is clear that doctors have a duty to warn and assure their patients of the safeness related to the chosen method of treatment. The provider’s role is not only an educational one but also a supportive one. The purpose of proper physician-patient disclosure is to permit the patient to make a knowledgeable and informed evaluation in light of their circumstance.

The right of action to recover for medical, dental or podiatric malpractice based on a lack of informed consent is limited to those cases involving either (a) non-emergency treatment, procedure or surgery, or (b) a diagnostic procedure which involved invasion or disruption of the integrity of the body. It is also a defense to any action on alleged failure to obtain such an informed consent that: a) the risk not disclosed is too commonly known to warrant disclosure; or (b) the patient assured the medical, dental or podiatric practitioner he would undergo the treatment, procedure or diagnosis regardless of the risk involved, or the patient assured the medical, dental or podiatric practitioner that he did not want to be informed of the matters to which he would be entitled to be informed; or (c) consent by or on behalf of the patient was not reasonably possible; or (d) the medical, dental or podiatric practitioner, after considering all of the attendant facts and circumstances, used reasonable discretion as to the manner and extent to which such alternatives or risks were disclosed to the patient because he reasonably believed that the manner and extent of such disclosure could reasonably be expected to adversely and substantially affect the patient’s condition.

The New York Legislature enacted the Medical Malpractice Act to provide a statutory basis for a lack of informed consent claim. The act establishes standards for disclosure of information to patients by physicians and sets parameters within which medical providers must obtain informed consent. The statute has imposed on the New York medical community the twin duties of providing the patient with the degree of information that furthers the patient’s right of self-determination, as well as the duty to obtain the patients informed consent. The statutory requirement to obtain consent extends to any provider in the course of treatment.

Victims of New York medical malpractice are strongly advised to seek legal assistance from a New York medical malpractice law firm. In case a patient feels that a doctor failed to properly advise and or obtain patient consent please feel free to call Gordon Price Diefenbach an attorney in Manhattan who has been handling these kinds of cases for nearly 30 years for a free assessment. The 24-Hour Hotline is (917) 734-7111. He will either speak to you the moment you call or will return your call within a matter of hours.

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