The Role of Informed Consent in Military Medical Malpractice – For the Military – Khawam Ripka LLP
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The Role of Informed Consent in Military Medical Malpractice

Informed consent is a critical concept in all areas of medical practice, including military healthcare. It serves as a safeguard, ensuring that patients are fully aware of the risks, benefits, and alternatives of any medical procedure or treatment before it occurs. For service members and their families, informed consent is especially significant because military healthcare often involves unique circumstances, such as deployments, injuries, or treatments related to combat.

However, when informed consent is not properly obtained or documented, the consequences can be serious, leading to military medical malpractice claims. In this blog, we’ll explore what informed consent means in a military context, the legal ramifications of failing to secure it, and how it plays a crucial role in medical malpractice cases.

What Is Informed Consent?

Informed consent is the process by which a healthcare provider educates a patient about the potential risks, benefits, and alternatives of a proposed medical procedure or treatment. The goal is to allow patients to make informed decisions about their own healthcare. A patient must have the mental capacity to understand the information and provide voluntary agreement before any treatment begins.

In the military medical system, this process should follow the same standards as civilian healthcare, but the unique nature of military service can sometimes complicate the process. For instance, medical treatments during combat or deployment may occur under urgent or extreme conditions, making it more challenging to ensure that proper consent is obtained.

The Importance of Informed Consent in Military Healthcare

Military service members and their families depend on the military healthcare system for medical treatment, whether on the battlefield, during training, or in everyday care. Informed consent is essential in these settings because it helps protect patient autonomy and prevents medical personnel from taking actions that the patient may not fully understand or agree to.

For military personnel, the stakes can be higher. Injuries and illnesses related to military service are often complex, requiring specialized treatments that carry unique risks. Whether undergoing surgery for a combat injury or receiving psychological care for PTSD, the patient must be fully informed about the treatment options, potential side effects, and possible complications. Without proper consent, patients may unknowingly agree to treatments that may not align with their best interests or personal values.

Common Scenarios Where Informed Consent May Be Overlooked

While military healthcare aims to maintain high standards, there are situations where informed consent may be insufficient or entirely absent, leading to potential malpractice claims:

  1. Emergency Situations During Combat: In life-threatening combat situations, military medical personnel may need to act quickly, leaving little or no time to thoroughly discuss treatment options with the patient. However, once the patient is stabilized, follow-up procedures should still require full informed consent.
  2. Experimental Treatments or Trials: Military medical research often involves experimental treatments for conditions related to combat, such as traumatic brain injury (TBI) or PTSD. Service members must be fully informed of the risks and experimental nature of these treatments before participating in trials or receiving care.
  3. Post-Deployment Medical Care: After returning from deployment, many service members undergo long-term medical treatments. If the risks of these treatments are not clearly explained, or if informed consent is not properly obtained, this could result in complications and potential malpractice claims.

Legal Consequences of Failing to Secure Informed Consent

When informed consent is not properly obtained, it opens the door to military medical malpractice claims. Service members and their families have the right to pursue legal action if they can prove that the healthcare provider failed to obtain informed consent and this directly led to harm or injury.

To establish a successful military medical malpractice claim, several elements must be demonstrated:

  1. Duty of Care: The healthcare provider had a legal duty to obtain informed consent.
  2. Breach of Duty: The healthcare provider failed to properly inform the patient about the risks, benefits, and alternatives of the proposed treatment.
  3. Injury or Harm: The patient suffered harm as a direct result of the treatment for which they did not provide informed consent.
  4. Causation: There is a clear connection between the lack of informed consent and the injury or harm suffered.

Failing to secure informed consent can result in a wide range of legal consequences, including compensation for medical expenses, lost wages, pain and suffering, and other damages related to the patient’s injury. In some cases, the healthcare provider may also face disciplinary action or loss of licensure.

Military Exceptions and the Feres Doctrine

One of the challenges in pursuing military medical malpractice claims is the Feres Doctrine, a legal principle that bars service members from suing the federal government for injuries that occur as part of their military service. This can complicate matters for military personnel who wish to file malpractice claims related to lack of informed consent. However, this doctrine typically does not apply to family members or retirees who receive medical care through the military system, allowing them to pursue claims more easily.

That being said, recent changes in legislation have created potential avenues for active-duty service members to seek compensation for military medical malpractice under certain circumstances. The National Defense Authorization Act (NDAA) of 2020 allows active-duty personnel to file claims for medical malpractice through an administrative process, although this does not amount to a full repeal of the Feres Doctrine.

Protecting Your Rights: What to Do If You Suspect Lack of Informed Consent

If you or a loved one believe you were subjected to a medical procedure in a military setting without proper informed consent, it’s essential to take action quickly. Military medical malpractice cases can be complex and involve strict timelines, especially with the Feres Doctrine and the nuances of military law.

Here’s what you should do if you suspect a violation of informed consent:

  • Gather Medical Records: Obtain all relevant medical records that document the treatment and any discussions related to informed consent.
  • Consult a Legal Expert: Reach out to a military medical malpractice attorney who is familiar with the unique challenges of these cases.
  • Document the Harm: Keep detailed notes on the harm or injury that resulted from the treatment, as this will play a critical role in any legal action you pursue.

Conclusion

Informed consent is a fundamental right in all healthcare settings, including military medical care. Failing to obtain proper consent can lead to serious consequences for both the patient and the healthcare provider. If you believe that you or a loved one has been subjected to medical treatment without informed consent in a military context, it’s essential to seek legal counsel and understand your rights.

At ForTheMilitary.com, we specialize in military medical malpractice claims and are dedicated to helping service members and their families navigate these complex cases. Contact us today for a consultation, and let us help you get the justice and compensation you deserve. Don’t wait—take the first step in protecting your rights and well-being.

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Here at Khawam Ripka, we are passionate about helping heroes in the military get the attention and financial compensation they, and their families, deserve.

If you or someone you love has been a victim of military medical malpractice, we would be honored to represent them and their family in their claim.

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