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Lack of Informed Consent

Lack Of Informed Consent

Patients Must Be Informed

Lack of informed consent is a recognizable cause of action in Pennsylvania. In short, it means the unauthorized touching of a patient by a doctor or healthcare professional. Without authorization, it is technically considered a battery under the law and damages may be awarded even if no physical harm was done. In addition, a plaintiff may make a claim for monetary damages if a doctor does not properly inform the patient properly of the risks, consequences and alternatives of a procedure.

Lack of informed consent cases can include:

  • failure to inform of risks, consequences and alternatives,
  • performing additional procedures,
  • attempting procedures not trained or credentialed in, and/or
  • physician exaggerating experience, or insurance coverage.

The Risks, Consequences & Alternatives

Pennsylvania law on informed consent mandates that every competent adult individual has the legal right to decide what happens to his/her own body. Patients in Pennsylvania have the right to make their our own medical decisions, even if everybody else around them believes they are being unreasonable.

If a doctor tells a patient that they will die if they do not have surgery, that patient is allowed to say ‘no’, under the Pennsylvania informed consent law. The law which protects patient’s right to make their own medical decisions, and also extends to the right of every patient, to be informed of the risks, consequences, and alternatives of any surgery or procedure.

It is only after understanding the risks, the consequences, and alternatives, of a proposed surgery or procedure that a patient can truly make an informed decision. An action or lawsuit for lack of informed consent is actionable, even if the procedure or surgery was performed correctly, and even if the surgery was beneficial.

We believe that patients have the legal and moral right to decide what happens to their own bodies. Physicians should not allowed legally to substitute their decision-making process for that of the patient. If you believe a procedure or surgery was performed whereby you did not understand the risks, consequences, alternatives, or if you believe more surgery was performed than previously agreed upon, we would be happy to review your case for free.

Pennsylvania Jury Instructions on Informed Consent

In every lawsuit for lack of informed consent, Plaintiffs are required to supply to the court proposed jury instructions. The Instructions set forth to the judge what we believe the jury should be told about the law in Pennsylvania as it relates to informed consent. Judge’s then have discretion on what is read to the jury.

The following are jury instructions that we used in a successful jury verdict concerning lack of informed consent.

PA Proposed Jury Instructions (Lack of Informed Consent):

1. You are instructed that a patient must consent to a surgical procedure before the surgical operation is performed. An operation without the patient’s consent constitutes a battery. Montgomery v. Bazaz-Shegal, 568 Pa. 574, 584-86; 798 A.2d 742, 749-50 ( 2002); Foflygen v. R. Zemel, M.D., (P.C.), 420 Pa. Super. 18; 615 A.2d 1345 (1992).

2. “Consent,” within meaning of agreement to operation by doctor, means a voluntary agreement by person in possession and exercise of sufficient mentality to make an intelligent choice to do something proposed by another. Gray v. Grunnagle, 423 Pa. 144, 157; 223 A.2d 663, 669 (1966).

3. A claim involving a surgical procedure performed without any consent at all by the patient sounds in battery. Montgomery v. Bazaz-Shegal, 568 Pa. at 585; 798 A.2d at 749.

4. A doctor who operates on a patient without that patient’s consent is liable for damages which occur, notwithstanding the care exercised. Gouse v. Cassel, 532 Pa. 197, 204; 615 A.2d 331, 334 (1992).

5. Additionally, the law imposes upon physicians a duty to obtain the informed consent of a patient prior to performing surgery. 40 Pa. C.S.A. § 1303.504; Montgomery v. Bazaz-Shegal, 568 Pa. 574, 584-86; 798 A.2d 742, 749-50 ( 2002); Foflygen v. R. Zemel, M.D., (P.C.), 420 Pa. Super. 18; 615 A.2d 1345 (1992).

6. The information provided by the physician must be sufficient to give the patient a true understanding of the nature of the operation to be performed, the seriousness of it, the organs of the body involved, the disease or incapacity sought to be cured, and the possible results. Montgomery, 568 Pa. at 584; 798 A.2d at 748.

7. The duty of informed consent requires a physician to advise the patient of those material facts, risks, complications and alternatives to surgery that a reasonable person in the patient’s situation would consider significant in deciding whether to have the operation. Montgomery, 568 Pa. at 584; 798 A.2d at 748.

8. Lack of informed consent is the legal equivalent to no consent; thus, the physician or surgeon who operates without his patient’s informed consent is liable for damages which occur, notwithstanding the care exercised. Gouse v. Cassel, 532 Pa. 197, 204; 615 A.2d 331, 334 (1992).

Case Results

Past success does not guarantee results but does help demonstrate our experience and knowledge as successful Pennsylvania trial attorneys.

$1.25 Million

Medical Malpractice - Botched Plastic Surgery

We filed a medical malpractice lawsuit on behalf of the victim of a negligently-performed breast reduction procedure. The case also explored the continuing issue of cosmetic surgeons attempting procedures that only board certified plastic surgeons should be performing. The case was resolved for $1,250,000.00.

$1.25 Million

Medical Malpractice - Emergency Room Mistakes

We represented a family in a medical malpractice case against a hospital and ER doctors for allegations of negligently misdiagnosing and discharging an emergency room patient. We passionately advocated for the family and was able to obtain a recovery in the range of $1,250,000.00.

$6.3+ Million

Medical Malpractice - Physician Errors

This was a complex Pennsylvania medical malpractice lawsuit filed against various doctors and the medical practice itself, alleging negligence. Plaintiff was eventually compensated in excess of $6,300,000.00.

Flaherty | Fardo | Rogel | Amick

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Pittsburgh skyline and bridge

Medical Malpractice

 FAQs

What Is Pennsylvania Medical Malpractice?

Medical Malpractice is the deviation from the ‘acceptable standard of care’.

The STANDARD OF CARE is the degree of caution or skill of which we expect and require from healthcare providers in our community.

A physician must have the same knowledge and skill and use the same care normally used in the medical profession. A physician whose conduct does not meet this professional standard of care is negligent and should be held responsible. Medical Malpractice is based upon holding doctors or healthcare providers responsible when the standard of care is breached.

The STANDARD OF CARE is a subjective standard. Therefore, doctors can often disagree about what is expected in providing medical treatment. In order to pursue a medical malpractice case in Pennsylvania, plaintiffs must obtain a written expert report from a physician in the same or similar field opining that the care rendered indeed was negligent.

Malpractice is believed to be the third leading cause of death in the United States behind heart disease and cancer, according to an article in the Journal of American Medical Association.

Individuals in Pennsylvania are entitled to compensation when a physician’s negligence causes their injury.

Compensation for medical malpractice includes monetary recovery for:

  1. past and future pain & suffering,
  2. medical expenses,
  3. lost wages,
  4. earning capacity,
  5. embarrassment,
  6. humiliation,
  7. disfigurement, and
  8. loss of enjoyment of life.

Our firm routinely reviews a wide variety of medical malpractice cases including surgical errors, hospital mistakes, misdiagnoses, plastic surgery errors, and lack of informed consent cases. If you have any questions, please call us at 412.855.5511 and speak to attorney Noah Fardo directly.

What Is The Statute Of Limitations for Medical Malpractice Cases in Pennsylvania?

The statute of limitations for medical malpractice and medical neglect cases in Pennsylvania is two (2) years from the date of the harm suffered. There can be a tolling (or extension) of the statute of limitations of two years in specific cases where the party was unaware of the negligence or harm suffered until a later date or if the case involves a minor (under the age of 18). In medical malpractice cases involving minors, the statute does not begin to accrue until the minor reaches age 18, and then ends on their 20th birthday.

Example of tolling a medical malpractice case: If a patient undergoes a knee surgery, and the doctor operates on the wrong knee, then the statute of limitations would most likely be two (2) years from the date of the surgery, since the patient should have known of the mistake on the day the surgery occurred.

However, if the doctor’s error was not discovered until a later date (even years later), then the statute of limitations may not begin to run until the patient knew, had reason to know or should have known of the alleged malpractice and the injury. Of course, each case depends on the unique facts of each case.

How Do I know If I Have A Medical Malpractice Case?

You need to have your potential case reviewed by experienced medical malpractice lawyers as well as a potential review by a physician.

Bad outcomes do not always mean a person has a lawsuit. A mistake by a doctor may mean that there is a case but not always.

In Pennsylvania, injured persons have a medical malpractice case if and only if they can satisfy three elements.

  1. There was a deviation from the acceptable standard of care AND another doctor in the same field verifies the deviation in writing.
  2. The deviation directly CAUSED harm to the patient.
  3. The patient was injured.

It is not always possible to know whether a medical malpractice case exists until the records are obtained and reviewed both by the lawyers and doctors.

However, common sense will often dictate to people whether a medical error happened and it is very important to know what to do if you are suspicious as to whether malpractice occurred or not.

What Should I Do After A Medical Mistake Has Happened?

If you think a medical mistake or medical error has happened based on the actions of a doctor or hospital, you need to do 3 important things.

  1. You need to ask the doctors and administrators what happened. This can be an effective tool in gathering information and often doctors will be more honest immediately upon the event happening than they will be later. Ask direct questions and take notes in front of witnesses when possible.
  2. You need to request the medical records as soon as is practical. Medical records can be changed or omitted. If you believe a medical error occurred, you are always better off requesting the medical records immediately at the hospital or at the doctor’s office if possible.
  3. You need to consult a medical malpractice attorney as soon as possible. The days following a medical mistake are crucial in gathering and preserving evidence. As the memories of a witness may fade, and medical records may get misplaced, it is important to start investigating what happened as soon as possible after a suspected medical error or mistake.
How Do I Get A Copy of My Medical Records?

Obtaining your own medical records should be easy. It is not. Doctors and hospitals often have excuses of why they are unable to timely forward copies of patients medical records.

Depending upon the facility, it is always better to try to obtain copies of the medical records at the time of treatment. Speak directly to the office manager or to the medical billing unit at the hospital.

You will need to complete a HIPPA compliant medical record release authorization if you would like your attorney to request these records on your behalf.

Many of the medical facilities in Pennsylvania do have standard medical record requests available online. These forms can be filled in by either the patient or the representative and sent directly to the provider. If you ever need help obtaining your medical records for a medical malpractice case in Pennsylvania, please feel free to let us know by emailing info@pghfirm.com.

Should I Go Back To The Same Doctor After a Medical Mistake?

It Depends.

We never give medical advice. If you believe that a specific doctor can give you or a loved one the best medical care, then you always need to do what is best from a health perspective. You should never let a legal decision affect an important medical decision.

However, from a legal perspective, we do not recommend continuing treatment with a doctor that you believe may have committed malpractice unless necessary from a medical standpoint or from a treatment standpoint.

The logic is simple. First, why would you want to continue treating with a doctor that you believe committed medical malpractice? If you believe a doctor was negligent, common sense would question whether you or your loved one should continue care with that same allegedly negligent doctor. Second, juries can be skeptical of patients who sue the same doctors that they continued to treat with. This is different if you believe a hospital made a mistake, and again legal decisions should NEVER guide your necessary medical treatment.

Choosing a doctor is a personal decision, and one that should focus on health and safety first and foremost. However, if you are pursuing a lawsuit, you should be careful about treating with the same doctor or healthcare provider you believe was negligent in the first place.

How Do I Find The Best Pittsburgh Medical Malpractice Lawyer For My Case?

Not all medical malpractice lawyers are equal and most have different levels of experience. Finding the right malpractice lawyer for your case is about finding the best lawyer that you feel most comfortable handling your case. There are several ways you can ensure that your potential lawyer is the right malpractice lawyer for your case.

At a minimum, you need to:

research lawyers, interview several lawyers, and make sure your lawyer has the time and specific experience to handle your case.

Will You Review My Medical Malpractice Case For Free?

We will certainly talk with you for free and provide some general thoughts on your potential medical malpractice case. Our screening process starts with an interview by an actual lawyer. If we believe there is merit, we will offer to review the medical records and have the records reviewed by a doctor. We do not offer actual physician review in every case.

There is no obligation during the review process and typically, we only offer representation if a doctor is willing to agree that there was negligence. In addition, we must be able to determine that the negligence caused harm to the patient.

If we accept your case, we advance 100% of all costs, expert fees, deposition costs, the costs of obtaining your medical records, and any other case expenses and are only reimbursed if we are successful in recovery.

If you would like a free consultation, please call Managing Attorney Noah Fardo directly at 412.855.5511.

What Do You Charge For Medical Malpractice Cases?

Our representation for medical malpractice and/or medical negligence cases is based on a contingent fee structure.

There is absolutely no fee unless we obtain recovery for you. We advance 100% the costs, including experts, filings, and depositions and are only reimbursed from the client’s share if we are successful. If we represent you or a loved one in a medical malpractice case, you can rest assured that we cannot make money unless we obtain monetary recovery for you or our client.

Our Pittsburgh law firm advances substantial sums of money for each case with absolutely zero financial risk to our injured clients.

If you are injured, we will make any necessary accommodations to offer you the most convenient consultation possible. Whether you are at home or in a hospital, we will listen to the situation which caused your injury.

What Is The Standard Fee Agreement For Medical Malpractice Cases?

The standard fee for medical malpractice cases is 40% of the total recovery received. It is important to understand that any costs advanced by the lawyer are typically deducted from the client’s portion of the recovery.

Clients are never responsible for out-of-pocket expenses unless there is a recovery. However, clients are encouraged to keep track of costs as litigation proceeds so that they are aware of the deduction which will happen from their final recovery.

Fees for injured minors will often be reduced and need approval from the courts prior to final resolution.

Should You Try To Settle Your Medical Malpractice Case Before Filing Suit?

It Depends. We have had some success in early resolution programs with local hospitals and doctors. Typically though, early resolution is only the best remedy if the case is very clear on liability and the defendants express an interest in the early resolution process. More typical is that the filing of a medical malpractice lawsuit is necessary to ensure that the case is fairly evaluated before any settlement. We believe that the value of a medical malpractice case usually increases once the legal complaint is filed.

Also, you can always address resolution once the case is actually filed, and then the defendants better understand the allegations and injuries suffered, as well obtain a copy of the expert report by your own doctor opining that the defendants were indeed negligent.

Ultimately, it is the client’s decision on whether or not they would like to settle at certain points throughout litigation. Our job is to provide options and advice. However, the final decision to settle or go to trial will always be the decision of the client. We work hard to make sure our clients are fully informed so that we can help them make the best decision for their case.

How Long Does A Medical Malpractice Case in Pennsylvania?

Most medical malpractice cases in Pennsylvania take about 1 1/2 to 2 1/2 years to effectively prosecute to trial.

It takes about 3-6 months to file the complaint and have the defendants file their answer. Discovery usually takes 12-18 months and then it takes another 6 months to have the case listed for trial depending on which county the case is filed..

These are of course estimates, and each medical malpractice case is unique depending upon the complexity of the case, the number of defendants, and the number of issues involving negligence, causation and/or damages.

Be careful about lawyers extending the case for longer than it needs to be. Many lawyers are eager to sign clients, but are not as eager to push the case forward as efficiently as possible. When our offices are retained, we work hard to either settle the case or move the case forward as quickly as possible to trial.

Do I Pay Any Costs In A Medical Malpractice Case?

Typically, No. There is no risk of our clients having to pay out of pocket expenses in a medical malpractice case.  However, clients are responsible for reimbursing the law firm out of their portion of the recovery for any monies advanced.

We routinely update our clients of any costs advanced so that they are aware of the costs at all times. We also try to be efficient in costs and not incur unreasonable expenses which ultimately are reimbursed from the client.

How Much Is My Medical Malpractice Case Worth In Pennsylvania?

It depends on the level of negligence of the doctor, as well as the severity of the harm actually suffered.

In Pennsylvania, injured plaintiffs can seek recovery for damages which include:

  1. past medical bills,
  2. future medical bills,
  3. lost wages,
  4. lost earning capacity, and/or
  5. other ‘out-of-pocket’ expenses.

Pennsylvania also allows for the recovery of pain and suffering, which may include:

  1. physical pain,
  2. emotional pain,
  3. stress,
  4. mental anguish,
  5. embarrassment,
  6. humility,
  7. and/or reduction in the likelihood of marriage.

Pain and suffering is different with every jury. Also, how reckless the medical error is, can have a direct impact on the financial award or settlement.

The true value of any medical malpractice claim can only be determined after thoroughly analyzing the liability, the defendants, and a full understanding of the injuries. This also includes understanding the plaintiff’s background, life and family. We work hard to inform our clients of expectations based upon our thorough review, past experiences and personal relationships with our clients.

What Is The Pennsylvania ‘Certificate of Merit’?

The Pennsylvania certificate of merit is a statement from another doctor agreeing that there was negligence.

In 2003, the Pennsylvania State Supreme Court approved a new rule requiring attorneys to obtain a “certificate of merit” from a medical professional establishing that there was a violation of the standard of care.

What this means is that in order to proceed in medical malpractice cases now, lawyers must have a written statement from another doctor, in the same or similar field of medicine, opining that there was negligence and that such negligence was in fact the direct cause of harm to the plaintiff.

A lawyer failing to obtain the certificate of merit cannot bring a case to trial. Certificates of merit must be obtained within sixty (60) days of the filing of the complaint. If a certificate of merit is not filed, the case can be dismissed and judgment may be entered in favor of the defendants.

Anyone considering filing a medical malpractice case in Pennsylvania needs to understand the critical importance of the certificate of merit and having a statement from another doctor agreeing that there was negligence, causation and damages.

What Is Your Past Experience With Medical Malpractice Cases?

For over 20 years, Flaherty Fardo has helped injured victims of medical malpractice claims recover significant money for their injuries.

Our efforts have helped victims in cases involving surgical errors, emergency room mistakes, misdiagnosis, failure to diagnose and lack of informed consent claims. We have extensive experience in cases against various healthcare providers including, hospitals, general surgeons, OB/GYN physicians, and emergency room staff.

We have received numerous settlements and/or verdicts in Allegheny County and surrounding counties including, Washington County, Westmoreland County, Elk County, Fayette County, and Clearfield County, Pennsylvania specifically for medical malpractice cases..

Medical malpractice claims are some of the most difficult cases to pursue, both because of the actual time incurred as well as the financial resources necessary to challenge some of the largest healthcare organizations in the state of Pennsylvania. We believe our success in prosecuting malpractice claims is a direct result of our work ethic and recognition of the importance of our client’s claims.

Do You Have Access to Doctors to Review My Medical Malpractice Case?

Yes. Our medical malpractice lawyers have developed a large access to a variety of  board certified physicians to review potential cases and to help with the prosecution of medical malpractice actions when negligence exists. It is common place to contact prior experts when reviewing new or potential malpractice cases.

Why Should I Choose Flaherty Fardo As My Medical Malpractice Lawyer?

Because if we accept your case, we believe no one will work harder to help you.

Choosing the right medical malpractice attorney is crucial. What we offer is experienced, aggressive representation with client’s interests as our primary concern.

We believe that recovering monies for victims of medical malpractice can affect our clients and their families for the rest of their lives. We take that responsibility seriously and only commit to cases we are determined to win.

We believe we offer three advantages.

  1. We have a large database of physicians we can consult. Having access to doctors is essential in prosecuting these cases.
  2. We have significant experience and have collected millions of dollars for victims of malpractice over the years.. We have successfully handled multiple kinds of malpractice cases including surgical errors, hospital errors, misdiagnosis, and informed consent cases.
  3. We provide unique personal attention. We are accessible and our clients should never have to ask about the status of their case.
Flaherty | Fardo | Rogel | Amick

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