What is the Difference Between Express and Implied Consent in Healthcare?

Do You Understand the Differences Between Implied and Expressed Consent?

In a medical setting, ‘consent’ is a fundamental concept. By stating your consent for a procedure or treatment, you are saying that you’re on board with what the doctor suggests for your medical care. And while we tend to think of medical malpractice lawsuits as centering around botched surgeries and other mistakes made in a hospital setting, malpractice cases can also be focused on issues where consent was not given or was misunderstood.

The difference between implied and expressed consent is right there in the chosen terminology. When you offer your express consent for a procedure, you often must do so in writing or in plainly spoken dialogue. By doing so, you establish to your medical team that you understand the treatment to the best of your abilities and consent to undergoing that procedure as described.

By contrast, implied consent may not have any clear agreement to the procedures which may follow and certainly does not involve you signing paperwork that clearly states your intentions. With implied consent, you and your doctor may believe you’re both on the same page, but there is room for a misunderstanding. In that space where misunderstandings manifest, massive and sometimes irreversible errors can occur. These mistakes could result in you undergoing a treatment you were not fully on board for or, worse, possibly result in death.

Examples of ‘implied consent’ may include rolling up your sleeve for a flu shot or nodding along to all of your doctor’s suggestions, or even walking into the ER before passing out from an injury.

When undergoing any medical treatment, it is essential that your doctors keep you informed as to the risks and the possible outcomes. If you do not offer your express consent to proceed and the doctors only act on your implied consent, then your life may be forever altered in ways you did not anticipate. In such cases, it may be worth speaking to a medical malpractice attorney to discuss your legal options.

What is Your Right to ‘Informed Consent’ as a Patient Undergoing a Medical Procedure?

The lack of ‘informed consent’ can become the basis for a medical malpractice claim. Medical doctors have an ethical and legal duty to ensure that their patients are informed of the risks, alternatives, possible shortcomings, and possible side effects of the treatments they are seeking. A doctor should sit their patient down and have a lengthy discussion about the patient’s concerns, answer any questions, and offer possible solutions. In providing those solutions, the doctor should try to explain how the treatment works and how it will seek to relieve the patient’s medical issues.

By offering this information, the doctor allows the patient to make the decision they believe suits them best. In some cases, the doctor may even disagree with the patient. But so long as the patient is informed of the risks and the doctor’s personal recommendations, they may proceed according to their wishes.

Are Doctors Legally Required to Obtain Your Express Consent?

It can be easy to misunderstand an act of implied consent. As a result, most doctors prefer to get their patient’s wishes in writing or ask them to clearly state that they consent to the planned treatment.

However, there are exceptions.

In cases of emergencies, when the patient’s life is on the line, and they may not be able to offer their express consent, medical professionals are expected to act to save the patient’s life. This may mean acting on implied consent. For example, if someone calls 911 following a bloody injury, it’s reasonable to assume that they are seeking medical aid. If they fall unconscious, the doctors shouldn’t wait until they wake to provide treatment.

Another example where implied consent may be enough is for certain procedures, such as a blood draw after a patient’s annual physical exam.

Can You Change Your Mind About Consent?

Signing a paper stating your consent for a medical procedure is not the same thing as signing a binding contract. You can change your mind. And if you feel uncertain about going forward with the procedure, perhaps you should. Additionally, if you are set to undergo multiple procedures, you are allowed to withdraw consent for one or two treatments but not all of them, if you so choose.

If you choose to withdraw consent and cancel any pending operation or treatment, your doctor may advise you of the risks of not proceeding. Use this time to speak with your physician about your concerns. It’s possible that you simply need to be more informed or have your mind set at ease. In either case, it’s important that you feel comfortable about your medical care, and that includes giving you the choice of offering or withdrawing your express consent.

Can You Pursue Compensation for Harm Caused Without Your Express Consent?

If your medical team acted without your express consent, you have reason to be upset. And worse, if your physicians altered your body or mind in some way without your full consent, then you may experience lasting negative effects. In such instances, it’s important that you speak with an experienced medical malpractice lawyer right away.

Whether facing a risky surgery, contemplating the side effects of a new medication, or starting down the long path of a new treatment program, your consent is incredibly important. If your doctors failed to obtain your consent, you could pursue financial compensation via the law.