What is the Difference Between Express and Implied Consent?

One thing that has become very common when you go to a medical facility to receive treatment is signing a consent form. This form is designed to affirm that you are giving the doctor and other healthcare professionals who work there permission to treat you for the injury or sickness you are dealing with.

By signing the form, you are saying you agree to undergo the medical care you are about to receive. The laws behind the form rest on two different concepts or types of consent: express consent and implied consent. 

The difference between the two is important for every patient to know before they go to a hospital or doctor’s office. Why? Failure to obtain consent could be grounds for a medical malpractice lawsuit should treatment result in injury or damages.

Express consent is when a patient willingly and knowingly consents to a particular medical treatment. Often, express consent is given in writing (though in some cases verbal express consent is permitted). 

In order for a patient to be able to give express consent for a procedure, they need to understand several things about it. For that reason, in most cases, express consent also requires informed consent. The idea is that a patient cannot give express consent if they do not understand they are agreeing to.

This is why doctors are required to inform their patients about procedures they are considering. Typically, doctors might tell their patients:

  • The possible outcomes of a treatment, both good and bad
  • Possible side effects of a treatment
  • The name and a description of the condition the patient has
  • Other treatments a patient could pursue instead and the possible outcomes for those treatments
  • Why the doctor recommends the procedure in question

With this information, the patient is able to give informed consent to a procedure because they know what they are consenting too. This type of consent is often needed for surgeries, to be put to sleep, and other situations where a patient needs to be fully informed of what could happen.

If a doctor fails to obtain express consent or fully inform a patient as to the risks or side effects of a procedure and the patient suffers an injury or incurs damages as a result of the procedure, the doctor could be considered to have acted negligently and be liable for resulting harm.

If you have suffered injuries or damages from a procedure and you feel your doctor failed to fully inform you and/or receive your express consent, contact a qualified personal injury lawyer to help you examine your case. A good personal injury lawyer will be able to tell if you have a strong case and what your next steps should be.

Implied consent is different from express consent in that it is assumed a patient consents to a particular treatment based on their actions. It tends to be much more difficult to prove than express consent since there may not be a written record of it. However, implied consent could exist when a patient nods their head in agreement or if they have taken steps to prepare for a procedure.

In some cases implied consent can be used as a defense for a medical malpractice suit. The standard is that if a reasonable person would believe a person is consenting to a procedure based on their actions, then the person is implicitly complying. 

There are also situations, such as emergencies, where express consent is not required to provide medical care. When a patient is unconscious and needs medical care in order to survive, their consent to that treatment is implied. Also, if an emergency arises during a planned surgery where a patient gave express consent, it is assumed they would want the doctors to treat them as necessary.

What You Should Do if You Think You Have a Medical Malpractice Case

As noted above, in some cases a physician may fail to receive express consent when they should. If that has happened to you and you suffered damages from the treatment you received, you might have a medical malpractice case. By talking with a personal injury lawyer you could determine the types of damages you might be due.

Your lawyer will also assist you in documenting your injuries and calculating the cost of those injuries. Damages could include medical expenses, lost wages, and even things like pain and suffering. Contact a lawyer today to begin putting together your case.