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Express vs. Implied Consent: What is the Difference?

January 27, 2022

Patients undergoing medical procedures always have the right to determine what happens to their bodies. Doctors have a legal and ethical obligation to inform their patients about the benefits and risks of medical procedures and treatments. Patients have the right to understand and agree to treatment plans before a doctor performs a treatment. This right is called informed consent. The right to informed consent applies to most medical procedures and treatments. However, there are some cases in which consent is implied. In medical malpractice cases, the difference between express and implied consent can be important.

Patients Have a Right to Informed Consent

According to the American Medical Association, informed consent is “fundamental in both ethics and law,” according to the American Medical Association. Patients have the right to make their own decisions about their medical treatment. Patients are entitled to information about the treatment that their medical providers are recommending. They have the right to have the opportunity to ask questions of their medical provider so they can make well-considered decisions.  

Informed consent requires opportunity and information. Patients need to be able to willingly agree to treatment while understanding the risks and their available alternative options. Except in the event that a patient is incapacitated due to an emergency, patients always have the right to refuse medical treatment or give their informed consent to medical treatment.

When a patient does not provide informed consent and becomes injured in a medical malpractice case, the lack of informed consent can be a major factor. Even if consent is implied, most doctors will take time to explain the treatment and procedures as a way to protect themselves against potential medical malpractice lawsuits.

The Main Difference Between Express and Implied Consent

The key difference between implied and express informed consent is the distinctness with which the patient’s consent is expressed. Express consent is usually given with words, either verbally or on paper. On the other hand, implied consent is usually understood through a patient’s actions.

Proving express consent is usually easier than proving implied consent. There can sometimes be a lack of express or implied consent, even with a written agreement. In most cases, expressed informed consent will apply. A patient needs to give express consent by signing a medical authorization form. Patients may also provide express consent verbally.

Express Consent

The doctor needs to communicate with the client about specific information to provide express consent. Doctors must give the patient enough information to allow the patient to decide whether to proceed with the treatment or procedure. Most surgical procedures, research studies, complex treatments, and any treatment requiring anesthesia require a patient to give express written consent. The patient needs to receive the following information before the procedure for express consent to be given:

  • The name of the proposed treatment or procedure
  • The condition or illness requiring treatment
  • A detailed description of the treatment or procedure, including a discussion of the potential benefits and risks
  • The anticipated result of having the procedure or treatment
  • A description of the risks associated with choosing nontreatment
  • Any possible alternative treatments
  • The lack of any possible alternative forms of treatment
  • An explanation for why the doctor believes this treatment or procedure is the best choice

Implied Consent

Consent between the patient and the physician can be implied. Express consent is usually given verbally or on paper, while implied consent is typically given through a patient’s actions. For example, if a patient shows up to his doctor’s office to get the yearly flu shot and rolls up his sleeves, sticking his arm out for the doctor, this is typically considered implied consent for a flu vaccination. The same applies if a patient goes to the doctor for a physical exam. By showing up for the exam, the patient is essentially consenting to the exam. However, if the doctor decides to perform an invasive procedure or use a course of treatment that was not planned, they will need to obtain the patient’s express consent before starting the treatment.

Implied consent is also vital in medical emergencies. Suppose a person has been in a car accident. The person is unconscious, and the emergency room staff cannot communicate with him. In that case, medical personnel can use implied consent to assume that the victim would want to be treated. They can perform life-saving surgery on the unconscious victim. In rare cases, consent can be implied when a person is suffering a debilitating mental illness, very young or very old, intoxicated, or when a language barrier exists. 

Is a Written Document Always Proof of Express Consent?

Most medical providers will use consent forms to get express informed consent from patients. The consent form states that the patient was provided information about the procedure, risks, and alternative options. The form may include affirmative language that shows that the patient consent to the specific procedure they are getting. If you sign one of these forms, you may be thinking that you have given your express informed consent. 

However, this isn’t always enough. Suppose a doctor obtains a patient signature without fully educating the patient about the risks of the procedure or giving them other pertinent medical information. In that case, the doctor would not have informed consent. The patient would not have the ability to understand the information and make an independent decision. Therefore, they do not have informed consent. There are cases in which even a medical authorization form that has been signed by the patient does not include enough information for the patient to make an informed choice. In these cases, medical malpractice may have occurred.

About Harrison Law Group, P.C.

The Harrison Law Group, P.C. is a well-known, and respected personal injury law firm who is exclusively dedicated to handing a wide range of personal injury cases which include but are not limited to motor vehicle accidents, slip and fall accidents, dog bites, traumatic brain injuries, serious and catastrophic injuries, soft tissue injuries, construction accidents, and many other injury cases.

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