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What You Need to Know About Express vs. Implied Consent

On Behalf of | Jan 17, 2022 | Medical Malpractice

When you go to a doctor for medical treatment, you expect that the doctor will ask you before engaging in any course of treatment. For example, before a surgeon operates on a patient, they will go over the risks of the procedure with the patient and obtain the patient’s permission. However, the doctor can’t just explain the risks in complex medical terms. A doctor must do so in a way that enables the patient to clearly understand the procedure and its risks. This is called informed consent. However, there are different types of consent required, depending on the situation. If your doctor does not obtain the property consent, they may be held responsible for medical malpractice.

For anyone who believes that they may have been the victim of medical malpractice, it is imperative to understand the difference between express consent vs. implied consent. At Batson Nolan PLC, we recognize the importance of consent in the medical setting. Our medical malpractice lawyers regularly represent patients who suffered injuries as a result of procedures they did not consent to or did not understand at the time they gave their consent.

The Importance of Consent in the Medical Setting

According to the American Medical Association, “Patients have the right to receive information and ask questions about recommended treatments so that they can make well-considered decisions about care.” This is referred to as “informed consent.”

Consent doesn’t always come up after a medical procedure. However, it often becomes an issue when a procedure does not go as planned. For example, a patient who suffers serious injuries during surgery may claim that the surgeon operated on them without obtaining informed consent.

What Goes into Informed Consent?

Doctors have an ethical and legal duty to obtain a patient’s informed consent before engaging in any medical procedure. Some of the information a doctor must convey to a patient to obtain their informed consent includes:

  • A detailed discussion of the health issue for which the patient needs treatment;
  • A description of the doctor’s suggested treatment;
  • An explanation of how the treatment or procedure is performed;
  • An honest discussion of the possible risks and benefits of the proposed course of treatment;
  • Details about the risks of not following the recommended course of treatment;
  • The results the doctor hopes to achieve; and
  • A discussion of any other available types of treatment that are available.

Doctors can get a patient’s informed consent by obtaining either express consent or implied consent. However, the difference between express vs. implied consent is rather complex. Read on to learn more about the two types of informed consent.

What Is Express Consent?

Express consent involves the doctor reviewing all of the above-listed factors with a patient. Usually, a doctor verbally reviews all aspects of a treatment regimen or procedure with a patient and then asks them to sign a written form. This form indicates that the doctor provided the required disclosures and answered the patient’s questions and that the patient wants to move forward with the treatment. However, a signed form is not always sufficient to establish a patient’s express consent. Doctors must actually go over the contents of the form for a patient’s consent to be valid.

Express consent is necessary for all invasive medical procedures, including surgeries or any time a patient needs to go under general anesthesia.

How Does a Doctor Obtain Implied Consent for a Medical Procedure?

Implied consent is a bit trickier than express consent because it is based on the patient’s actions and their interactions with the doctor leading up to the treatment or procedure. For example, consider a situation in which a woman schedules a routine gynecological exam with her doctor. The doctor asks the patient to disrobe for examination as they step out of the room. When the doctor returns, the patient has removed her clothing. In this situation, the doctor may have implied consent to conduct an examination of the patient.

Informed consent is generally presumed for life-saving treatment in emergency situations, such as when a patient arrives unconscious at the emergency room. Additionally, doctors are generally covered under implied consent if life-saving treatment is needed while a patient experiences a complication during a surgery. Of course, this assumes that the doctor obtained informed consent for the surgery itself.

What Happens If a Provider Doesn’t Get the Necessary Consent?

Because doctors have a legal duty to obtain a patient’s informed consent before performing most medical procedures, a doctor’s failure to obtain consent may give rise to a medical malpractice lawsuit.

While most medical procedures require express consent, doctors routinely overlook covering key aspects of a course of treatment. In these situations, even if a patient signed a form indicating they wanted to go ahead with the procedure, their consent may not be legally valid. And if a doctor performed a procedure without informed consent, they may be liable for any injuries the patient suffered as a result of the treatment. Depending on the situation, damages in a medical malpractice lawsuit may include compensation for a patient’s medical expenses, lost wages, and decreased earning capacity. Patients may also be able to recover for the non-economic damages they suffered as a result of the medical procedure or treatment, such as their pain and suffering.

Contact an Experienced Medical Negligence Lawyer to Speak About Your Case Today

If you believe that you or a loved one suffered negligent medical care, you have rights and it is important you understand them. At Batson Nolan PLC, we’ve been helping injury victims recover financial compensation since 1860. Over this time, our injury and wrongful death lawyers have helped countless clients obtain meaningful compensation. Not only that, but by holding providers accountable for their mistakes, we encourage the medical community to develop better practices. Over time, this can significantly decrease the rate of mistakes and other instances of medical malpractice. To learn more and to schedule a free consultation with an experienced medical negligence attorney, contact Batson Nolan PLC. You can also connect with our attorney through our online contact form.