What is the assumption of risk in a medical malpractice case?

Before a doctor treats a patient, the doctor is obligated to inform that patient of any attendant risks involved in pursuing the treatment as well as the consequences of not receiving the treatment. After the patient has been fully informed, he then must decide whether he wants to go through with the proffered procedure. If the patient chooses the treatment and signs the papers waiving any liability against the doctor and hospital, the patient is said by the courts to have assumed the risk that was presented to him. However, a patient has to be fully informed of all risks in order to give informed consent. If he was not told of a certain risk, then he was not fully informed enough to give informed consent, and did not assume that particular risk. Some healthcare professionals argue that assumption of risk can be implied, which means that even those unspoken risks are taken on by the patient who decides to pursue a treatment, and that the defendant doctor and hospital should not be held liable. However, this particular defense is often nullified when:

• the specific risks were not known by the patient;
• reasonable standard of care were violated;
• the healthcare professional's conduct was gross, wanton, malevolent, or reckless;
• the patient was unaware of potential fallout from doctrine of assumption of risk; or
• the patient did not voluntarily enter treatment

Talk to a Medical Malpractice Lawyer to determine if your doctor should be held legally liable for your injury.