Medical Malpractice: Assumption of Risk

During the course of any medical care, patients agree to allow healthcare professionals to perform medical procedures within the scope of their training and within the realm of the reasonable standard of care that currently exists in the medical community. In any medical event, patients have legal rights to be informed about any and all procedures they undergo while under a doctor's care. Additionally, a whole host of other medical professional positions exist, all of whom must also follow the applicable state and federal laws that concern informing patients of their rights and any medical attention they receive.

The medical professionals that can be held liable for failing inform patients of inherent and associated risks with any medical procedure include:

  • Physicians
  • Nurses
  • Physician's assistants
  • Medical interns
  • Surgeons
  • Optometrists
  • Chiropractors
  • Dentists
  • Paramedics
  • Psychiatrists and psychologists

When any medical treatment produces iatrogenic results and medical malpractice suit ensues, victims, now known as the plaintiff, will bring their claims against the healthcare providers, now known as the defendant, in the form of a civil tort. Within American tort law, there are a number of defenses defendants may choose to implement when seeking to mitigate or dismiss their liability for damages done to patients. One such defense strategy is the medical malpractice assumption of risk defense strategy, which if successfully proven by defendant healthcare providers, will disallow victims from collecting compensation. To implement a medical malpractice assumption of risk defense strategy, healthcare providers and their legal counsel will seek to prove patients, who eventually became victims, accepted and endured the risks associated with medical treatment they received with full knowledge and consent, or what is otherwise known in common law as volenti non fit injuria.

In medical malpractice assumption of risk, healthcare providers will argue patients either expressly or implied acceptance and knowledge of the risks faced by undergoing any medical procedure. If a civil case fact-finder acknowledges the validity of this, the defendants have successfully proven a patient, at the time of the medical treatment, alleviated the defendant's of duty of care, or in accordance to the laws, prevented the defendant healthcare providers from any and all liability. In essence, the patients would have, in theory, assumed all risks and liability for undergoing the medical procedure or treatment at the hands of the defendants.

With medical malpractice cases, the assumption of risk defense can be nullified in a number of common ways. Claims that will nullify a defendant's claims of medical malpractice assumption of risk include:

  • Specific risks not known
  • Reasonable standard of care violations
  • Gross, wanton, malevolent, or reckless conduct
  • Patient unaware of potential fallout from doctrine of assumption of risk
  • Patient did not voluntarily enter treatment

The specific risks associated with the damages and injuries caused in the medical procedures must have been known, appreciated, and understood by patients in order to completely transfer the assumption of risk. In instances where a patient is incapable or another reasonable person in their same position would have been unable to comprehend these risks, the doctrine of assumption of risk is null and void. Additionally in regards to knowledge of risk, implied agreements, also at times express agreements as well, can only define a limited, highly subjective standard of comprehension and appreciation. These contracts are notoriously difficult to comprehend, and a patient of reasonable intelligence, and medical background, would generally never truly be able to appreciate the potential fallout from undergoing a medical procedure. Part of not fully comprehending the assumption of risk on behalf of plaintiffs also comes when a patient does not voluntarily undergo a medical procedure with their consent, which can occur in some extreme circumstances.

Another means of avoiding the dismissal of a medical malpractice tort on the defendant's grounds of assumption of risk is when health care providers deviate from the reasonable standards of care present in their respective profession. The same standard is applied when healthcare providers implement conduct or actions that are gross violations of professionalism and medical ethics.

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