Medical Informed Consent: What You Need to Know

Medical Informed Consent

The lawsuits against Dr. Larry Nassar, the former Michigan State University sports medicine doctor, keep piling up. To date, there are at least 50 criminal complaints filed against him.

These complaints are being investigated by MSU police, the FBI and, the Michigan Attorney General’s office. At least 26 women have also filed lawsuits against Nassar for sexual assault they allege happened during his many years of medical treatments for several gymnastics associations, including USA Gymnastics, Twistars and Michigan State University.

The charges all center on a similar type of story: that Nassar would digitally penetrate the vagina and/or anus of a woman (or, in many cases, teenage or adolescent girl) that had come to him with lower back or hip injuries. In many cases, the charges state that Nassar did so for long periods of time and sometimes without explaining the procedure, using gloves or lubricant.

The Question Around Medical Informed Consent

The question which will inevitably arise in court centers around medical informed consent. Nassar’s attorneys will argue that Nassar, a Doctor of Osteopathy, was performing treatments in keeping with “recognized forms of intravaginal manipulation that help relieve pain for patients,” according to the doctors who were interviewed for

While it is true that some osteopathic urologists use intravaginal manipulations to help women with pelvic floor problems which can be a source of lower back, leg and hip pain, the burden will be on the prosecuting attorney to prove, beyond a reasonable doubt, that Nassar violated the laws of informed consent.

What is Medical Informed Consent?

All medical practitioners are required to obtain a patient’s informed consent before proceeding in any course of care. The specific definition may vary from state to state, but the basics are the same:

A medical provider must tell a patient of potential benefits, risks and alternatives involved in any surgical or medical procedure or other course of treatment and procure written consent in order to proceed.

The idea is that the patient, not the doctor, must make the best choice for him or herself regarding treatment.

For Doctors

This means that doctors, when treating patients, must:

  • Speak to patients themselves.
  • Cover the patient’s diagnosis, give the nature and purpose of treatment, clearly and truthfully relate all benefits and risks of proposed treatment and clearly and truthfully relate alternatives to the proposed treatment and their risks and benefits.
  • Make sure a patient understands what they’re hearing.
  • Make sure the patient signs and dates the informed consent documents and that the documents are kept in the patient’s file.

For Patients

It is in the best interest of patients to:

  • Listen and ask questions of the doctor if they don’t understand, would like more detailed information, or desire to seek other medical advice and treatment.
  • Make sure things are explained in language you can understand and not be intimidated by medical language. The burden of explanation and of obtaining informed consent is on the physician – even though it may often seem like it’s the other way around.

There are a few types of situations where informed consent is not considered necessary, but these are very specific:

  • Situations not involving medical procedures or treatment. While a doctor using a stethoscope to listen to your heartbeat may technically be a medical treatment, usually the use of this instrument is so well-known to people who are coming to a doctor’s office or hospital that explanation and consent is not considered necessary.
  • Emergency situations where there is not enough time to explain and obtain consent.

In addition, in situations where the patient is unable to give informed consent – such as patients with mental disabilities or who are young children – consent must be given by a guardian or parent.

Take Away

Charges for violation of informed consent laws are serious, regardless of how common the procedures are. Medical personnel carry the burden of obtaining informed consent. If you are facing charges of illegally performing medical procedures, it is imperative that you seek experienced legal counsel. Please call The David J Kramer Law Firm, PLLC for help regarding your case.

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