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Establishing a Duty of Medical Care

Doctor Error Boca RatonDoctors are not automatically required to treat or provide care to everyone they meet. In order for there to be a duty of care on the part of a doctor or other medical professional to provide care to a patient, there must generally exist some form of voluntary agreement or relationship between the doctor and the patient. The circumstances will establish the doctor-patient relationship, and from that point forward the doctor has a duty of care to the patient.

Under certain circumstances, however, a doctor may have an obligation to provide treatment even if there is no actual voluntary agreement. In cases where a person is not conscious, a doctor-patient relationship is formed where family members of the patient retain the doctor’s services. In addition, among other exceptions, hospitals accepting certain kinds of federal funds may be required to provide care to indigent patients under certain circumstances, and hospital emergency rooms may be required to provide care to anyone coming in with a life-threatening condition.

Doctor-Patient Confidentiality

Every doctor-patient relationship carries with it a duty on the part of the doctor or other health provider to keep patient information private and refrain from disclosing it to third parties without your consent. A doctor or medical professional who breaches this duty by disclosing confidential information, including your medical records, may be liable to you for damages for any injury (including embarrassment) you suffer from the disclosure. The duty of confidentiality may not be broken absent authorization from you to release your records to a designated third party.

There are a number of exceptions to this rule whereby a health care provider can release your records without liability. Among these are the following common scenarios:

  • Health insurance companies normally require patients to waive the right to confidentiality of information when submitting a claim for medical coverage.
  • If a patient sues a medical professional for malpractice, the patient’s medical records and information may be released and used in connection with any litigation.
  • In certain situations, medical professionals are required to report certain kinds of patient information to authorities, such as certain communicable viruses or diseases.
  • Doctors generally must report suspected incidents involving evidence of child abuse or gunshot wounds.

Informed Consent

The principle of informed consent requires a physician to provide information about a patient’s medical condition and the available medical care options so that the patient may make an informed decision as to whether or not to consent to a proposed plan of treatment.

The doctor must adequately inform the patient of the diagnosis, the nature and purpose of the treatment, any alternatives, the benefits and risks of the procedure itself and the risks of not undergoing the procedure, and any available alternatives. In essence, under the concept of informed consent, the doctor must not only get the patient’s consent to treatment, but the treatment must be obtained from a fully informed patient.

While consenting to treatment may impose certain limits on your rights, signing a statement assuming the risks involved with a procedure does not mean that you have no recourse if the health care provider fails to perform according to acceptable levels of care and is negligent. Though you may be consenting to certain risks inherent in the medical procedure, you generally do not consent to the negligence of the practitioner performing the procedure.

Forms of Consent

Medical Malpractice Boca RatonConsent to a treatment can be given either orally or in writing, as is common where doctors provide consent forms for patients to sign. There are some situations where consent of a patient is implied, as where the patient exhibits conduct indicating a willingness to undergo the treatment, or in the case of an unconscious patient who is unable to consent, and there is no family member available to give consent on his or her behalf (and no living will which directs otherwise).

If the patient is a child it is usually necessary for a parent or guardian to consent to any treatment, unless treatment is required in an emergency situation and the parent or guardian is unavailable to give consent. Exceptions may apply to situations where a minor seeks treatment for a sexually transmitted disease, or for alcohol or drug problems.

Simply signing a form does not mean that a physician has fully explained all the information necessary for a patient to have “informed consent.”

If you or a loved one has been injured as a result of possible medical malpractice, call Brotman Nusbaum & Ibrahim now at (888) 661-6266 or CLICK HERE TO SUBMIT A SIMPLE CASE FORM. The initial consultation is free of charge, and if we agree to accept your case, we will work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds. Don’t delay. You may have a valid claim and be entitled to compensation for your injuries and damages, but timely steps must be taken before the statute of limitations expires or your claim can be lost forever.

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