Medical Malpractice:

Gross Negligence and Lack of Informed Consent

Gross Negligence

Gross negligence, within the context of medical malpractice, is an action that is obviously an error, even to someone without any medical training. For example, amputating the wrong limb or leaving a surgical instrument inside a body cavity of the patient would be considered gross negligence. In some states, establishing gross negligence as a cause of legal action does not require the testimony of an expert. Some courts allow medical malpractice actions to be based upon "res ipsa loquitur" ("the thing speaks for itself"). This means that simply because the event occurred, negligence of the part of the defendant is assumed, because there is no other way that it could have happened. If you are the victim of a grossly negligent action on the part of a medical professional, an experienced medical malpractice attorney can help you obtain justice.

Informed Consent

The need for informed consent, to differing extents, is recognized by all states. That is, the patient has the right to receive a full disclosure of the facts about his or her medical condition, the treatment options available, any risks associated with the treatments, and the prognosis. Furthermore, the information must be presented in such a way that it can be understood by a layperson: in plain terms and in sufficient amounts so that a patient is able to make an "informed" decision about his or her health care.

One the patient has received this information, any consent to being treated is presumed to be an "informed consent." Failure of the part of the doctor to obtain informed consent for any non-emergency treatment may be charged with a civil and/or criminal offense. For a patient to successfully argue that treatment was carried out without informed consent, he or she must prove that treatment would not have been accepted had he or she known of the potential risks or outcomes. It must be shown that the consequence of the unauthorized treatment resulted in medical malpractice damages. While establishing this can be difficult, an experienced medical malpractice attorney can help you build an effective, persuasive case.