Do Release Forms Keep Me From Suing?

If you’ve been to the doctor or any healthcare provider, you’ve likely been asked to sign a consent form for treatment. Most standard releases state that the patient understands the treatment or medical procedure they are about to receive and agrees to proceed knowing the risks outlined in the document. Informed consent is designed to protect healthcare practitioners from malpractice lawsuits in New Mexico. Does that mean you can’t sue your doctor or surgeon if they make a mistake during treatment that causes you significant injury? Absolutely not. There always are exceptions to the consent form rule.

What does informed consent really mean?

Informed consent. Those two words can mean a lot of things when applied in different contexts. In the world of medical malpractice, it describes the process of communication between patients and their healthcare providers leading to an understanding of and permission for treatment.

The New Mexico Uniform Jury Instructions (UJI) provide some context for how courts of law in the state litigate medical malpractice cases. UJI § 13-1104A describes informed consent in the following way: A doctor has a duty to obtain the patient’s informed consent [or the patient representative’s informed consent] to [treatment] [an operation]. For consent to be valid, it must be based upon information which a reasonably prudent patient would need to know in deciding whether to undergo the [treatment] [operation].

The UJI outlines a medical practitioner’s duty of care to their patients. In non-legalese, the UJI makes clear that healthcare professionals who proceed with surgery or treatment without fully explaining how it may benefit or harm their patients have breached their duty of care and can be sued for medical malpractice if something goes wrong.

Information required in informed consent documents

Informed consent is more than signing your name to a piece of paper that says you give your doctor, surgeon, or other healthcare practitioner permission to perform a specific procedure. It must include other vital information you need to determine if you want to assume the risks of treatment.

Before signing any document giving your permission, make sure the following has occurred:

• Your healthcare practitioner has named your condition verbally and in the consent form.
• Your healthcare provider must describe the procedure or treatment verbally and in the consent form.
• Your healthcare practitioner must list the benefits and risks of the medical procedure, surgery, or other treatment.
• Your healthcare provider must outline the benefits and risks of other options, including not getting the recommended procedure or treatment.

Failing to disclose any of these details can leave medical professionals liable for personal injuries their patients endure.

Asking questions during informed consent

An important part of the informed consent process is giving patients ample time to ask questions about their condition and the treatment options presented by their treatment team. By discussing all options and allowing patients to express any concerns or requests for additional information, medical professionals have fulfilled a portion of their duty of care.

Patient safety is a focus of most quality healthcare facilities and medical providers. Part of providing the kind of care that produces excellent patient outcomes involves a commitment to making patients part of the process. Asking questions makes patients active participants in their healthcare decisions.

As a patient, some questions you should ask before signing your name on the dotted line include:

• Do I have to have this procedure to survive my condition?
• Are there any alternative treatments to what you are recommending? If so, what are the benefits and risks?
• What are the benefits and risks of moving forward with the recommended treatment? Are there any complications from this procedure?
• How many times have you performed this medical treatment or surgical procedure?
• Where will the procedure or treatment be performed and who will be supervising it?
• Does this procedure require anesthesia? If so, what are the risks?
• What can I expect during recovery?

Don’t be afraid to do some research on your chosen medical provider to determine their record for patient safety and whether they’ve previously been sued for malpractice. You can check the status of a healthcare provider’s license to practice in New Mexico on the New Mexico Regulation & Licensing Department website.

Exceptions to informed consent laws in New Mexico

There are times when medical providers can’t reasonably obtain your permission before administering treatment. Let’s say you’re involved in a multiple-vehicle crash on I-40, one of the most dangerous roads in New Mexico. Your injuries are life-threatening. You are unconscious and unable to consent to treatment. Let’s also say that a next of kin or authorized person can’t be found in time to seek their consent, either. To save your life, doctors move forward with surgery or medical treatment. If the patient suffers serious injury from the treatment, a physician must be able to prove their actions were necessary and the situation rose to the level of an emergency to be considered for this exception.

Another time healthcare professionals can be exempt from some aspects of informed consent laws is with patients who meet the legal definition of emotionally fragile. If your mental state is such that you would refuse all medical treatment deemed necessary to treat a condition or to save your life, doctors can be vague about all the details of benefits and risks. Again, medical providers must prove their patients were emotionally fragile if they later are sued for malpractice to be exempt.

Seek out experienced medical malpractice attorneys

If you’re unsure if your rights were violated by a medical professional who performed a procedure or treatment that left you disabled or with further injuries, seek out an experienced medical malpractice attorney who can review your case.  Scott Atkinson has more than 30 years of experience in personal injury law in New Mexico, which includes medical malpractice cases. Contact Scott today to schedule your free case evaluation.