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Patient safety cannot be waived in a medical consent form

Readers of this medical malpractice blog know how important it is for a doctor to inform a patient of the risks and uncertainties that may surround a proposed treatment. Without that information, a patient’s decision cannot constitute informed consent. 

Yet consenting to a procedure cannot be used a blanket defense to acts of negligence. Said another way, a patient can never be deemed to have consented to an injury resulting from his or her doctor’s negligent mistakes.

A lawsuit brought by a woman against her podiatrist provides a recent example. The woman underwent separate surgeries on her right and left feet to resolve discomfort when wearing shoes. The surgery on the left foot was successful. Unfortunately, a series of surgeries on her right foot were unsuccessful.

The woman’s second toe on her right foot caused pain because it was too long. The surgical procedures involved the removal of bone from her toe in the hopes that the toe would be straightened. Unfortunately, the tissues contracted after the surgery and pulled the toe up again. Three more surgeries also failed to resolve the woman’s pain.

Do three failed surgeries sound excessive? The woman apparently reached this conclusion and consulted with a different podiatrist. That podiatrist recommended a final surgery, a bone-graft that lengthened the toe to 90 percent of its original size. Fortunately, the bone-graft reduced the woman’s pain.

The woman brought a medical malpractice lawsuit against the first podiatrist for the three failed surgeries. In his defense, the podiatrist asserted that the woman had signed a consent form that described the potential side effects. In a recent ruling, the state’s supreme court determined that patient consent is not defense when a doctor has breached the applicable standard of care.

Source: Pennsylvania Record, “Consent forms not relevant to negligence claim in case over toe-shortening procedure,” John O’Brien, March 26, 2015 

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