Before undergoing medical treatment or a surgical procedure in Illinois, you will likely be asked to sign a patient consent form or ‘legal waiver’ by the healthcare provider responsible for the procedure. Signing an ‘informed consent’ form may or may not impact your legal right to file a medical malpractice lawsuit if something goes wrong. Although the purpose of the form is to shield the provider from claims that the patient didn’t know the risks of the procedure, they never protect against negligent mistakes, and they are not always enforceable in Illinois in any case. In other words, you might still be entitled to file a lawsuit against a healthcare provider even if you signed a patient consent form before your treatment. Let’s find out more about informed consent and why a medical malpractice lawsuit may still be possible.
Why is informed consent used in medical procedures in Illinois?
Informed consent forms are used by healthcare providers in Illinois to provide information to patients before they undergo a procedure or treatment:
- To inform patients of the benefits and risks of the procedure or treatment.
- To outline the patient’s role in treatments and procedures.
- To provide information on alternative procedures.
- To explain the right to refuse treatment and the associated risks of doing so.
The doctor should first discuss these matters with the patient, providing advice based on the age and medical history of the patient, and ensuring they understand the main terms contained in the form. By signing it, a patient accepts the associated risks.
If something goes wrong during the medical procedure, doctors, surgeons, nurses, and hospitals are, in theory, protected from liability.
The concept of informed consent derives from medical ethics, whereby healthcare providers have a legal and ethical responsibility to ensure that a patient’s consent is ‘informed’.
While informed consent may discourage patients from seeking legal remedies from a medical professional or facility if something goes wrong, it does not necessarily preclude that possibility.
Informed consent vs. legal waiver in Illinois
Informed consent is a process and a record of your agreement to a specific treatment after being told the risks. This contract does not generally waive your right to sue for negligence.
Exculpatory agreements (‘waivers’) aim to waive liability for future medical negligence but these agreements are generally unenforceable in Illinois.
Ultimately, nobody can sign away their right to medical care that is free of negligence in Illinois. Even if you signed a ‘waiver’ for medical treatment, a negligent act by the provider can still result in a lawsuit.
What does a legally enforceable medical waiver look like in Illinois?
To be legally enforceable in Illinois, informed consent forms from healthcare providers require language that is:
- Clear,
- Concise, and
- Explicitly related to medical treatments and procedures.
Additionally, the patient who signs the form must have the necessary decision-making capability to understand what they are signing. This involves:
- Choice: the ability to make a clear decision.
- Understanding: the capacity to understand relevant facts about the decision.
- Appreciation: the ability to give informed consent with personal concern for relevant facts.
- Reasoning: the mental acuity to make reasonable decisions that apply to the current situation.
Patients should have the opportunity to ask questions and address concerns, as well as discuss the situation with their family or trusted acquaintances, if necessary. There should be no perceived pressure, duress, or coercion involved when signing the consent form.
Additionally, if several doctors are involved in the patient’s medical care, decisions and information should be shared with the entire medical team, with the opinions of each medical professional considered.
When can informed consent be challenged in court?
Informed consent forms may be challenged if they are not drafted correctly or if the patient suffers from impaired judgment or reasoning at the time the form was signed.
Valid reasons for impaired judgement or reasoning may include:
- Emotional or intellectual immaturity,
- Intellectual disability,
- High levels of stress (post-traumatic stress disorder),
- Severe mental disorders,
- Severe sleep deprivation,
- Intoxication,
- Dementia, and
- Coma.
If you or a loved one has been injured by medical malpractice in Illinois, you may still have the right to sue the hospital or medical facility for emotional distress, even if a waiver was signed.
If a doctor performs a procedure you did not consent to at all (e.g., you agreed to surgery on your left ear, but they operated on your right), this is ‘medical battery.’ In battery cases, you do not need to prove the doctor was negligent or that they deviated from the standard of care.
However, lack of informed consent cases differ from that. If you consented to the procedure, but the doctor failed to warn you of a specific risk that actually happened, Illinois treats this as a negligence-based claim. For these cases, you must prove:
- The doctor failed to disclose a material risk.
- A ‘reasonable person’ in your position would have refused the treatment if they had known that risk.
- The treatment (and that specific risk) caused you physical harm.
Speak to a medical malpractice lawyer who can review your case and advise you of your legal options.
What happens if informed consent is not obtained by a medical facility?
If, after consultation with loved ones or other medical professionals, you decide not to go ahead with the recommended medical treatment, you may be asked by the facility to sign a document confirming that you refused treatment.
If, however, you sign the waiver forms without the necessary information provided by the healthcare provider upfront, check your legal position with a qualified lawyer.
Supposing you or a loved one suffers personal injury or even death from a procedure for which proper consent was not obtained beforehand, the doctor was not authorized to perform, or the doctor exceeded the scope of the consent provided. The doctor or medical facility may be liable for medical malpractice.
What is the Illinois Medical Malpractice Act?
The Illinois Medical Malpractice Act (735 ILCS 5/2-622) states that before filing a medical malpractice lawsuit, the patient must have a written medical expert’s Affidavit of Merit and a written report confirming that there is a ‘reasonable and meritorious cause’ for filing the action.
Without this necessary step, the Illinois courts will not accept the case, making legal assistance essential for anyone looking to file a lawsuit against their medical provider.
What is the statute of limitations on medical malpractice injuries?
Under the terms of the Illinois Medical Malpractice Act, adult patients generally have two years from the date they knew, or reasonably should have known, of the injury caused by the lack of consent (up to a maximum of four years from the date of the medical procedure).
If you or a loved one has been injured because of a medical procedure and you’re unsure about whether you can file a medical malpractice claim, it’s important to act quickly.
Contact our medical malpractice lawyer at Dodds Law Office, PC as soon as possible, and let’s get started with your recovery. No upfront attorney fees. Call as soon as possible at (309) 829-9300, and let’s get started with your case. No upfront attorney fees.
