If a Surgical Injury Is Listed as a Risk in Your Consent Form Is It Still Malpractice?

Whenever you undergo surgery or some other type of medical procedure with a doctor, you will be asked to sign a Consent Form.  What are they?  These are forms that list any type of known risk of that surgical procedure, state that these risks have been explained to you, and you have agreed to undergo the surgery after being made aware of these risks.  Essentially they are ways for doctors and hospitals to document that you have been told of the risks of a surgical procedure before undergoing it. They typically have broad language to cover all possible risks.  For example, while a particular nerve injury you suffered during surgery may not be listed in the consent form, “nerve injuries” will typically be listed as a risk.

Does the fact that you sustained an injury or complication listed in these consent forms mean that you cannot have a medical malpractice claim?  The answer is it depends. Under Pennsylvania law for example a physician must have the same knowledge and skill and use the same care normally used in the medical profession. A physician whose conduct falls below this standard of care is negligent. If the physician is a specialist he or she must have the same knowledge and skill and use the same care as others in that same medical specialty.  The same is true for New Jersey when determining whether a doctor was negligent. A physician practicing as a specialist or general practitioner represents that he or she will have and employ the knowledge and skill normally possessed and used by the average physician practicing his or her profession as a general practitioner or specialist.

A physician must also keep informed of the contemporary developments in the medical profession and must use current skills and knowledge. In other words, a physician must have up-to-date medical skills and knowledge, and if he or she fails to keep current or fails to use current knowledge in the medical treatment of the patient, the physician is negligent.

Just because a surgeon lists a complication, such as a nerve injury, as a risk of the surgery in a consent form does not automatically resolve them of fault for causing it then.  The question is did that surgeon use the same knowledge and skill as other physicians in his field of medicine when they performed the surgery and caused that nerve injury.  If other surgeons using the same skill and medical knowledge as other physicians in their profession would not have caused the nerve injury, then the surgeon in questions was likely negligent (or breached the standard of care).  If other surgeons using the same skill and medical knowledge as other physicians in their profession would still have caused the nerve injury during the surgery, then the injury will likely be considered an accepted and known risk of the procedure and not negligence.

How do you determine whether an injury you suffered during surgery or some other type of medical procedure was the result of physician negligence or not?  It takes an in depth review of your medical records and discussing your care with other physicians who are board certified in the same area of medicine as the medical professional who performed your surgery.

The Thistle Law Firm is experienced at handling medical malpractice cases and determining whether your surgical injury was the result of negligence or just a risk of the procedure.  If you have been seriously injured while undergoing surgery or some type of medical procedure the attorneys at the Thistle Law Firm are here to take your questions at 215-568-6800.

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