What should I know about informed consent to help avoid birth injuries?

“Informed consent” is a process that allows patients to make an informed decision about a specific type of care they will receive. All medical care options carry some sort of risk, and they also have expected outcomes. By going through the informed consent process, the patient is made aware of both risks and expected benefits so that their medical decisions are made with the full scope of information in mind.

Any time you are going to receive a specific type of care known to be risky, you will engage in the informed consent process. All types of birth will involve informed consent because birth has the potential for complications for both the mother and the fetus. Mothers will have to weigh their options carefully and choose procedures that they find to have the most acceptable risks and are most likely to provide the benefits they want.

When engaging in the informed consent process in the months before giving childbirth, listen carefully, ask questions, and be prepared to do your own research in order to appreciate the full scope of the decision you are about to make. By receiving information from your obstetrician and discussing the matter in detail, you can decrease the likelihood of you or your baby acquiring birth injuries you most want to avoid.

What is informed consent?

“Informed consent” is a concept used in the medical field to ensure that patients understand the risks and consequences of a given medical procedure. Informed consent is most often discussed in situations where there will be a surgery, which includes procedures like vaginal childbirth and Cesarean section.

What happens during the informed consent process is that the patient has a discussion with their physician, who informs the patient of all the risks associated with a given procedure. The physician also discusses the intended benefits so that the patient has clear expectations. The patient is also given instructions so that they understand their role in increasing the procedure’s chances of a successful outcome. For example, they may be told that after surgery they must change their dressing regularly and apply antibacterial ointment to avoid infection.

Once the patient is informed, they have the option to consent. Consent includes both a verbal indication of understanding and a physical record of consent in the form of a signed document. The document will contain all of the medical and legal information the patient was supposed to have discussed with their care provider.

One major aspect of informed consent that some modern providers overlook is that there must be a verbal or in-person conversation with the attending physician. Many times, the patient will merely be given a form to sign, and the care provider will act as if they have done their due diligence. But if a complication does arise and the patient has not had the opportunity to ask questions or get clarifications, the fact that they signed the form may not be enough to establish that the appropriate informed consent process took place.

How can informed consent help me avoid birth injuries?

Pregnancy is different than most medical procedures in that birth is unavoidable (unless something tragic happens mid-pregnancy). When discussing informed consent, most situations involve a question of whether or not any medical procedure will take place. For example, someone with a knee injury will have the option to elect to get surgery or to avoid surgery and instead treat the injury with medicine. During the informed consent process, the patient will be told about the risks and expected benefits of the surgery compared to not having surgery. The patient will then make informed consent on whether or not to go forward with the surgery.

However, with childbirth, the baby has to come out one way or another! In this case, the mother has to weigh all of her available options for delivering the baby. If she has what is considered as a “high risk” pregnancy, then there will be more options, such as delivering the baby early or receiving a medical intervention immediately after the birth.

Unfortunately, there is no 100% way to avoid birth injuries for certain. Even when physicians do everything they can and follow all professional standards, complications and injuries can happen. Knowing this, parents simply have to get informed about all of their options and consent to the ones they feel have the risk/reward profile they are most comfortable with and that most closely matches their own goals and preferences.

If I give informed consent and a birth injury happened, does that mean the provider isn’t liable?

First, as mentioned above informed consent involves more than someone just signing a medical release form. It is a back-and-forth process with the attending physician that involves one or more conversations. If someone merely signed a form they were handed, they could be forgiven for not understanding complicated medical language or grasping the full implications of what the form is saying. Therefore, a patient may not have actually made informed consent even if it appears they have on the surface.

Note that a lack of informed consent can mean that the patient did not receive benefits they were led to believe would occur. For example, if a condition is detected in the fetus and the mother’s goal is to minimize the risks that this condition will lead to a congenital defect, then the physician should set clear expectations as to whether or not this is possible. If the mother wasn’t explained the full expectations for a specific treatment and feels they were misled, this could be considered a form of malpractice in some situations because of a lack of informed consent.

Second, all medical malpractice cases involve the question of whether or not the physician deviated from the expected standard of care. In some cases, a birth injury will occur despite the physician doing everything they could to prevent it. In other cases, a physician could have overlooked some medical possibility but because they followed the standard of care, they may still not be legally considered negligent and liable because of malpractice. It’s only when the physician commits a deviation from the standard of care and when the birth injury can be traced to that deviation that the provider will be considered liable.

In sum, birth injuries can and do happen, despite everyone’s best efforts. The informed consent process is supposed to allow parents to make the best decision for their own goals and their own comfort level. However, informed consent is not always done properly, and informed consent may be irrelevant if the provider deviated from the standard of care.

If you have experienced a birth injury to yourself or your baby, it is important to speak to a Tampa birth injury lawyer as soon as possible to discuss your legal options. You could be eligible to receive compensation for resulting medical costs, any temporary or permanent disability, and your family’s own pain and suffering. Schedule a confidential, risk-free, no-obligation case evaluation at no cost to you when you call Darrigo & Diaz at (813) 774-3341 or contact us online.