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Express Consent vs. Implied Consent: What’s the Difference?

Posted in Medical malpractice on September 9, 2021

Doctors and other health care providers typically need a patient’s consent to provide certain treatments.  If a patient is harmed as a result of receiving medical treatment to which they did not consent, they may be able to recover compensation by filing a medical malpractice claim or lawsuit.

Medical malpractice laws vary from one state to another. In general, though, you must prove a medical professional harmed you because they behaved in a manner that was unreasonably negligent. This means their actions were at odds with the accepted standard of care for those in their profession. One way you and your attorney can potentially prove negligence is by showing that a health care provider treated you without first getting your consent.

However, consent comes in two forms. In medical malpractice cases, there is “express consent” and “implied consent.” This guide will help you better understand the differences between the two.

Medical Malpractice Essentials: What is Express Consent?

It’s usually fairly easy to determine when express consent has been given. Express consent is often given in writing. It can come in the form of a physical document with a signature on it, or it can be conveyed electronically. For example, an email confirming you consented to a procedure may be considered express consent.

Courts often recognize clear verbal agreements as forms of express consent as well. It may be determined that you gave express consent if your doctor thoroughly explained the nature of a procedure and the risks it involved, and you clearly stated you were willing to undergo the procedure.

Again, there may also be exceptions to express consent requirements. For instance, a patient may be unconscious and unable to give express consent, but they will die if a doctor doesn’t provide immediate treatment. A physician may not need express consent in this scenario. In fact, this could be an instance in which it’s possible to argue that a patient gave implied consent.

What is Implied Consent?

A patient doesn’t always have to clearly state (whether verbally or in writing) that they are willing to receive a treatment to give consent. Implied consent involves actions or circumstances that give a medical professional enough evidence for them to reasonably assume a patient consents to treatment.

Examples of implied consent include the following:

  • A patient makes an appointment to receive a shot and lifts up their shirt sleeve when the doctor approaches them with the needle. They may not have directly said “I am ready for the shot at this precise moment,” but their actions indicate they are willing to be given the shot.
  • A patient follows a doctor’s recommendations in preparation for a surgical procedure and shows up on time for their appointment.
  • A patient scheduled a regular physical exam and underwent all procedures involved in a typical physical.

Implied consent is vaguer than express consent. It’s not always easy to determine whether implied consent has been given. That’s one of the many reasons it’s important to have representation from a qualified medical malpractice attorney when seeking compensation. An insurer that’s trying to avoid paying you what you deserve may suggest you gave implied consent when that’s not genuinely the case.

You Can Seem to Give Express Consent & Still Recover Compensation (Sometimes)

You may have signed a document or made a direct verbal statement consenting to a treatment. That doesn’t always mean you actually gave express consent. To be able to give express consent, you must have been provided with certain information first.

Specifically, your doctor must have explained:

  • The nature of the condition being treated
  • The nature and name of the treatment
  • Any risks associated with the treatment
  • The potential results of the treatment

A doctor might also have to explain why they believe a treatment is necessary. In some instances, they’re also expected to describe alternative treatments. If a doctor failed to provide you with the information you needed to make an informed decision, you might not have truly given express consent.

This once again highlights how complicated medical malpractice cases often are. Don’t worry if you’re not sure whether you gave express or implied consent prior to receiving a treatment that caused harm. An attorney can review your case and determine if you have grounds to file a claim or lawsuit.