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Informed Consent in New Mexico Medical Malpractice Cases

Posted in Firm News

Whenever a doctor performs a surgery or procedure, the doctor is supposed to explain all of the risks associated with the procedure to the patient. This entails explaining to the patient what exactly will be done during the procedure, what the expected outcome of the procedure is, and what the likelihood of encountering a complication is.

If a doctor fails to properly inform a client about the risks of a procedure, and the patient is injured during the surgery, the patient may be able to file a New Mexico medical malpractice case seeking compensation for their injuries. This may be the case even if the doctor was not negligent in performing the surgery. A recent opinion issued by an Oklahoma appellate court held that in order to obtain truly informed consent, a doctor should also advise the patient of any non-doctor assistants who will be helping with the procedure.

The Facts of the Case

The plaintiff was a patient of the defendant doctor. At some point in the course of treating the plaintiff, the defendant doctor suggested the plaintiff undergo a specific surgery. The plaintiff agreed, and the defendant doctor had the plaintiff sign a general release waiver giving permission for the defendant and “whomever he/she (they) may designate as his/her assistants, to perform” the procedure. However, the space provided for the doctor to provide the names and credentials of any assistants who would be involved in the procedure was left blank.

The defendant performed the surgery and enlisted the help of a registered nurse who had helped the defendant numerous times in the past. However, during the surgery, the plaintiff’s ureter was severed. It was not exactly clear which of the two severed the ureter, but it was undisputed that the registered nurse substantially participated in the surgery.

The plaintiff filed a medical malpractice lawsuit against the doctor, claiming that the doctor never obtained her informed consent because he did not inform her that a non-doctor would be performing significant portions of the surgery. The court agreed with the plaintiff, holding that the plaintiff’s right to choose her own medical care necessitated she be informed when a non-doctor would be performing significant portions of the surgery. The court explained that the involvement of a non-doctor may increase the likelihood of complications, and a patient should be made aware and be given the opportunity to object.

While this case took place in Oklahoma, similar doctrines of law apply here in New Mexico. In general, New Mexico doctors are required to obtain a patient’s informed consent prior to beginning any procedure or course of treatment. What exactly is required to obtain informed consent differs according to the jurisdiction. Anyone considering a medical malpractice lawsuit based on a lack of informed consent should consult with a dedicated New Mexico medical malpractice attorney to discuss their specific case.

Have You Been a Victim of Medical Malpractice?

If you or a loved one has recently been a victim of what you believe to be medical malpractice, you may be entitled to monetary compensation. The dedicated New Mexico personal injury attorneys at the Fine Law Firm have extensive experience representing clients in a wide range of personal injury cases, including medical malpractice cases. To learn more about New Mexico law as it pertains to medical malpractice cases, and to discuss your case with an attorney at the Fine Law Firm, call 505-889-FINE to schedule a free consultation. Calling is free, and you will not be obligated to continue forward with your case unless it is your express desire to do so.

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State Appellate Court Recognizes Wrongful Birth Lawsuit, New Mexico Personal Injury Lawyer Blog, July 5, 2017.