Yes, it is possible to make a medical negligence claim, even if you agreed to the procedure. However, a lot will depend on the circumstances of your case, and we will explore some of the most important details in this article.
The grounds for making a claim
For medical negligence claims where you agreed to the procedure, there are two possible grounds on which you may be able to base your claim:
- That you did not give informed consent to the procedure.
- That the procedure itself (or any connected care) was carried out
We will look at each of these in more detail below, but you should also be aware that one medical negligence claim may include both possibilities.
What is informed consent?
For you to give informed consent, the medical professionals treating you must have explained any material risks involved in the treatment to you, along with any reasonable alternative or variant treatments.
What is a ‘material’ risk will depend on the circumstances, but the courts will look at various factors (if called upon to decide) including:
- The nature of the risk.
- What effect it would have on your life if the risk occurred.
- The importance you placed on the benefits sought by the treatment.
- The alternative treatments available and the risks associated with them.
As a general rule, a patient must always consent to any medical procedure before it can be carried out. However, there are some situations where informed consent cannot be taken from the patient themselves. This could be where:
- They are too young to legally consent (under the age of 16).
- They do not have the required ‘mental capacity’ to give valid consent.
- Treatment occurred in an emergency situation where it was impossible to obtain prior consent. This can also include discoveries made during a procedure, where additional treatment is needed to resolve a new emergency.
In the first two examples, informed consent must be obtained from an adult who is responsible for the patient (such as a parent, or someone with power of attorney over a protected person). If they were not given details of the risks of treatment and the possible alternatives, then a medical negligence claim may be possible in the same way as if the patient themselves had not been properly informed.
Consent in emergency situations can be more complicated. If this describes your circumstances, it is best to speak to a specialist medical negligence solicitor to discuss your situation.
Proving that a lack of informed consent caused you harm
Often the most difficult part of these kinds of claim is to prove that the lack of informed consent was the cause of the harm you suffered.
To be successful, you must be able to prove that – had you been fully informed of the risks and possible alternatives – you would not have proceeded with the treatment as you did.
If you would have had the treatment in any event, and so experienced the consequences, then it cannot be said that the lack of information caused the harm. However, if the treatment was not carried out correctly, or to a sub-standard level of care, then this is where the other possible basis for a claim may arise.
You cannot consent to negligent treatment
Even if you were fully informed of the risks and alternatives available, if the treatment itself was not carried out to the required legal standards then you may have grounds for a compensation claim.
As part of their duty of care towards you, treating doctors must ensure that any procedures they undertake are conducted to the required standard, which is that of a reasonably competent doctor in that particular field of expertise. If they do not meet this standard, through mistakes or carelessness, then you will be able to claim compensation for any harm that this sub-standard care has caused you.
Getting expert advice on a medical negligence claim
The law in this area can be complicated. If you are still coming to terms with injuries or harm suffered from poor quality care – or from not being properly informed about the risks of a procedure – it can be difficult to know where to turn.
At Bridge McFarland, we have a specialist team of experienced medical negligence solicitors who can give you clear, straightforward advice on your situation.
If you would like to talk to us, please get in touch with us here.
