Misuse of Medications and Medical Devices

A health care professional may be held responsible for the negligent prescription of a medication or medical device if he/she ignored the manufacturer’s instructions, or prescribed the wrong medication and/or dosage, which resulted in an injury to the patient.  In some cases the pharmaceutical manufacturer may be held responsible where a drug caused a patient injury, but only if the manufacturer neglected to warn of potential side effects or dangers of the drug.  A prescribing physician, because of advanced knowledge and the adequate information from the manufacturer, is in the best position to determine whether a particular drug or device is appropriate for a patient.  When using a medical device, it is incumbent upon the doctor to disclose to the patient the risks attached to the use of this device. Failure to give such informed consent may, in some states, give cause to a claim for malpractice against the doctor.

Emergency Situations vs. Informed Consent

In many situations, failure to obtain a patient’s informed consent prior to a procedure or treatment is a form of medical negligence.  This means a health care professional must inform a patient of all the potential benefits, risks, and alternatives involved in any medical procedure, surgical procedure or any other course of treatment, and must obtain the patient’s written consent to proceed.  Informed consent may be either express or implied.  Express consent is given in writing or verbally.  If written, it should include the name of the health care provider who discussed the proposed treatment with the patient, time and location where the consent form was signed.  Consent not given by a patient verbally or in writing, but is understood from the surrounding circumstances of the procedure or treatment at issue, is known as implied consent. 

In some emergency situations, opportunity does not allow time to obtain a patient’s informed consent or the patient may be unconscious and unable to communicate.  If an emergency involves risk to a patient’s life or the patient is unable to communicate, consent may be implied with the understanding that the patient would have consented to such emergency treatment. The process of obtaining informed consent for a competent adult may seem relatively easy.  However, in situations pertaining to mentally disabled individuals or children, the ability of the health care professional to obtain informed consent becomes more difficult. In such instances, serious questions may arise concerning who is able to give informed consent for these individuals.  In many situations, a mentally disabled person has an appointed guardian who is authorized to make medical decisions and give informed consent for that individual.  Health care providers need to be sure when they obtain informed consent for incompetent individuals, that they have obtained it from the correct person or persons.

In most circumstances, parents can give informed consent for treatment of their minor children.  However, some states allow young adults under eighteen to participate more actively in their medical care and treatment, including the process of informed consent.  Most states focus on mature minors adequately ready to understand the nature and consequences of treatment.  In those states, such young adults may be able to provide consent without parental consent.  Some states have passed specific laws allowing minors to consent, without a parents’ knowledge and/or consent, to health care treatments pertaining to mental health, sexual activity and substance abuse.

A consent form does not release a health care professional from the applicable standard of care in performing a procedure, and you were injured as a result, you may still recover against him/her.  Patients are entitled to complete information on all treatments and/or procedures to which they are subjected.  A health care professional who fails to provide such information may be held accountable.

Not all situations require that informed consent be given. For example, although listening to a heartbeat through a stethoscope may be considered a "treatment" or "procedure," to some people (especially those who are uncomfortable in physician's offices), it's rare that a physician and patient would have a lengthy discussion about the benefits and risks of listening to a heartbeat using that device.

DISCLAIMER: The information you obtain at our firm web site is not, nor is it intended to be, legal advice. It is recommended that you should consult an attorney for individual advice regarding your own situation.