Bixby, OK asked in Criminal Law, Personal Injury and Legal Malpractice for Texas

Q: Consent was Not given and yet dr did anyways!

If dr was told not to do what he suggested should be done, and told primary dr has already addressed, yet dr does anyways leading to loss of limb! What can be done when consent was NOT given

1 Lawyer Answer
Kiele Linroth Pace
Kiele Linroth Pace
  • Criminal Law Lawyer
  • Austin, TX
  • Licensed in Texas

A: The location on this question is marked "Bixby, Oklahoma" but it is appearing in the forum for attorneys in Texas. If this event did not occur in Texas then please re-post your question in the Oklahoma forum.

The question is marked Criminal Law as well as Personal Injury and Legal Malpractice (which is basically a subset of Personal Injury.) I'm not sure why Family Law was included... unless perhaps the withholding of consent was by a legal guardian rather than the patient.

Anyway, my answer is given only in the context of Criminal Law in Texas... There is a concept of "implied consent" that gets into case law and is too way much to get into in this forum but it is enough to say that if a patient is at risk of dying the consent to attempt treatment is implied.

If we assume there was no implied consent, the doctor could be charged with Aggravated Assault Causing Serious Bodily Injury, which is a felony of the second degree punishable by 2 to 20 years in the state penitentiary and a fine up to $10,000. The doctor would probably be able to raise the NECESSITY defense as a justification for his actions. The doctor would be acquitted (found not guilty) if there is reasonable doubt that THIS SPECIFIC DOCTOR believed that the action was immediately necessary to avoid imminent harm and the desirability and urgency of avoiding the harm outweighed the risk of losing the arm. So... if the doctor believed the patient could die without the action then the conduct would be legally justified for the purpose of criminal law. If you believe a crime was committed then the proper course of action is to report the situation to local law enforcement in the county where the medical procedure was performed. They will determine whether or not to pursue a criminal case against the physician. A private individual can't really FILE criminal charges like on TV... you simply report the facts to law enforcement and they decide whether a criminal case is appropriate.

However, just because an action is legally justified for the purpose of CRIMINAL law does not mean that the doctor is shielded for liability for monetary damages under CIVIL law. That is outside my area so you should talk to a Medical Malpractice attorney to discuss the possibility of a lawsuit.

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