Express and implied consent are terms used in healthcare situations. It involves a patient giving consent to medical treatment or procedure. Some treatments or procedures require a patient to give express consent. The patient is presumed to give consent in other situations.

In a medical malpractice case, implied or express consent can be a critical factor in whether you can win the case. 

Informed Consent and Medical Malpractice Claims

The lack of informed consent can be the basis of a medical malpractice claim. However, the patient must prove that the lack of informed consent resulted in injuries or harm to the patient.

Informed consent requires the doctor to provide the patient with certain information. The information must be enough for the patient to decide whether to proceed with a medical procedure or treatment. Doctors have an ethical and legal duty to provide the following information to their clients:

  • A discussion about the health condition that requires treatment
  • A description of the medical treatment the doctor prescribes or the procedure the doctor suggests
  • An explanation of how the medical procedure or treatment is conducted
  • A discussion of the potential risks involved in the procedure or treatment
  • A discussion of the potential benefits associated with the procedure or treatment
  • Information about the risks that the patient faces if the patient refuses treatment
  • The results that the doctor anticipates achieving from the treatment or procedure
  • A discussion of any alternative forms of treatment or procedures that might be available
  • An explanation of why the doctor believes that the specific procedure or treatment is necessary and the best choice for the patient 

By providing the above information to the patient, the doctor is allowing the patient to make an informed decision about the patient’s health care. The doctor may disagree with the decision the patient makes. However, the patient has the right to weigh all the options and consider all information before making a personal health decision.

When is Express Consent Required for a Procedure or Treatment?

Any invasive procedure typical requires express consent. Examples include surgery or participating in a clinical trial. 

Express consent is generally given in writing to protect the doctor. The patient signs a form stating that the doctor has provided the required disclosures for informed consent. The form states that the patient has chosen to proceed with the medical procedure or treatment.

Express consent is required when there are risks for harm. Examples include going under general anesthesia or receiving chemotherapy. Many doctors use a written consent form for all procedures to protect themselves, even in cases in which implied consent applies.

What is Implied Consent?

Implied consent means that the patient’s actions reflect the patient’s consent to treatment or procedures. 

For example, a patient who makes an appointment for a flu shot, keeps the appointment, and then rolls up his sleeve for the doctor to give the shot is presumed to have consented to receive the flu shot. Likewise, if a patient comes to a lab for blood work and voluntarily holds out her arm for the nurse to take blood, she has given implied consent. 

Implied consent also applies in emergency situations. If a person is unconscious, a doctor is covered by implied consent when the doctor performs life-saving procedures. If a patient is in surgery and complications arise that require the surgeon to perform additional procedures, the doctor is also covered by implied consent.

It is presumed that a patient would give consent to life-saving treatments if the patient were able to do so. The outcome of the treatments does not impact the case unless you can prove that the doctor was negligent or committed wrongdoing that rises to the level of medical malpractice when he performed life-saving procedures in an emergency. 

Were You Harmed Because of a Lack of Consent?

If you believe your physician failed to obtain consent for a procedure or treatment, talk with a medical malpractice lawyer as soon as possible. The attorney reviews the case to determine what type of consent was required and if the doctor met that requirement.

However, remember, you must have suffered harm and damages because of the lack of consent to win a medical malpractice claim. If you did not sustain any damages, you could not recover compensation in a medical malpractice case even if your physician were negligent.

If your doctor committed medical malpractice, you might receive compensation for your damages. You could receive compensation for your medical expense, loss of income, pain, suffering, and other dates. The first step is to talk with a lawyer who has experience handling personal injury and medical malpractice claims.