If surgical consent is not obtained for a non-life threatening injury & performed anyway is that Malpractice?

Question

I was admitted and signed for Pain Management and ER Protocols. The ER staff immediately put me on Morphine (high Dose) and never discussed surgery while I was coherent and capable of making an informed Medical decision. As a matter of fact I don't remember anything for a 17 day time span and there is no signed surgical consent on record. I am single and have no one else that would be allowed to make medical decisions for me. The injury itself is rare in nature and requires procedures and equipment that are not available to my local Hospital in rural West TN. From information obtained on the internet I suffered a level II trauma with brain involvement that was not revealed as the Drs. never looked for any other damage. The Neurologic injury has just been confirmed. Since the surgery was performed without my consent written or verbal does that constitute Malpractice? And who would be liable the Hospital or Private Practice Physician? I requested to be transferred to a trauma unit

Answer 1

Sounds like a tricky situation. A lawyer can better sort this type of thing out. There is a thing call "implied consent" used in an emergency situation when there is no one to decide what is best for you. Here is a definition of implied consent:
In addition to any other instances in which a consent is excused or implied at law, a consent to surgical or medical treatment or procedures, suggested, recommended, prescribed or directed by a duly licensed physician, will be implied where an emergency exists if there has been no protest or refusal of consent by a person authorized and empowered to consent or, if so, there has been a subsequent change in the condition of the person affected that is material and morbid, and there is no one immediately available who is authorized, empowered, willing and capacitated to consent. For the purposes hereof, an emergency is defined as a situation wherein, in competent medical judgment, the proposed surgical or medical treatment or procedures are immediately or imminently necessary and any delay occasioned by an attempt to obtain a consent would reasonably jeopardize the life, health or limb of the person affected, or would reasonably result in disfigurement or impairment of faculties.

Answer 2

Did you suffer additional injuries due to what the doctors' did?
If so (and it can be proven), then you may have a case.

If you did not, your case is much weaker.

Be aware,that a successful malpractice case will require more documentation than what you found on the Net.

If you're still inclined to sue, talk to an attorney.