You may know that every time you must be put under anesthesia, you are entering a serious surgical procedure with certain risks. However, you may not have been made aware of the full extent of these risks. This may make you feel overwhelmed and unprepared for the damage you suffer in the days, weeks, months, or even years afterward. In a case like this, you may have every right to argue that your attending medical professionals failed to warn you adequately beforehand. Follow along to find out what you need to prove a failure to warn and how a proficient New York City surgical errors attorney at Mark L. Bodner, P.C. can help you make a productive argument.
What is the failure to warn argument?
A failure to warn is an argument, commonly used in medical malpractice claims, where a patient (i.e., the plaintiff) accuses a medical professional (i.e., the defendant) of inadequately explaining the risks associated with a certain surgical procedure, medical treatment, or medical test. So, you may have consented to a certain surgical procedure, medical treatment, or medical test, but it may not have necessarily been “informed consent.” That is, for it to be considered “informed consent,” it must meet the following criteria:
- You must have fully understood the potential consequences of the medical professional’s recommended plan when you agreed to go through with it.
- You must have been allowed to sign a form that consents to the medical professional’s recommended plan without any outside pressure.
- You must have been allowed to ask the medical professional any questions and have them answered truthfully before signing a form.
- You must have been told the name of the attending surgeon if you agreed to go through with a surgical procedure.
What is needed to prove a failure to warn in a medical malpractice claim?
A medical professional may argue that your signature at the bottom of a form is enough to prove your acknowledgment of the potential risk of a surgical procedure, medical treatment, or medical test. However, you may respond with other proof that the medical professional was the negligent party in the matter.
For example, your medical records may include a summary of your “informed consent” conversation with your medical professional. So you should have your attorney obtain these records. Then you should have a medical expert review these records. Here, they may be able to confirm whether the medical professional mentioned specific risks or overall gave adequate information. That is, they may find that the medical professional disclosed risks from other physicians’ outcomes rather than from their personal experience.
But if you have any further questions or concerns, please do not hesitate to contact a talented New York City hospital negligence attorney. Schedule your initial consultation with Mark L. Bodner, P.C. today.