What Is the Difference Between Express and Implied Consent?
Michele Mirman | Medical Malpractice | April 21, 2020
Before your doctor can legally treat you, your permission – or consent – is required. In times of an emergency, though, implied consent based upon your actions rather than actual communication could be used to give treatment.
If things go wrong and you want to file a personal injury claim based upon medical malpractice afterward, things can get a bit hairy – especially when it comes to implied consent.
How Do I Give Express Consent For Treatment?
In most cases, you give expressed consent by signing forms and other papers.
However, before you sign those papers, your doctor must tell you:
- An overall explanation of the condition
- A description of the treatment or procedure
- What results you should experience from having the treatment, as well as possible results from not having it
- Any possible risks or complications from having the treatment
- Alternative forms of treatment that could work.
The doctor also has the responsibility to make sure you understand the information you’ve received.
Other people you may meet (nurses, referring doctors, assistants, etc.) are not required to disclose the information because they are not the ones directly performing the treatment.
If the patient is your child or an adult with limited reasoning skills, it will be up to the legal guardians to provide expressed consent.
How Is Implied Consent Given?
Implied consent depends upon the circumstances at the time. For example, if you are unconscious and surgery or some other procedure is needed to save your life, the doctor has implied consent.
Another example is that if you’re undergoing a surgery for which you’ve given expressed consent, and an unexpected situation occurs (ruptured blood vessel, loss of blood, etc.), your consent to fixing the problem is implied since you agreed to the first procedure.
On some forms for expressed consent, there’s often a line about agreeing to additional procedures if they’re necessary.
Can I Change My Mind About Consent?
You sure can! In fact, even if you’ve already signed paperwork giving your expressed consent, you can withdraw it altogether or change the limits right up until the procedure itself has started.
For example, if you’ve given consent to have your tonsils and appendix removed, you can change the limits to just a tonsillectomy – as long as you make your wishes known before the procedure.
Although you don’t need a reason to withdraw or limit your consent, it’s best to do so as soon as possible – either orally or in writing.
If you do decide to withdraw or limit your consent, the doctor will want to make sure you’re doing so with a clear mind. The doctor should make sure you understand the potential risks of not going ahead with the procedure.
Finally, you’ll likely be required to sign a document confirming your decision.
How Do I Know if Medical Malpractice Has Occurred?
While many people think medical malpractice rarely occurs, they’re often shocked to discover it’s the third leading cause of avoidable death in the U.S.
As for consent, if a doctor does not obtain implied or express consent from you or does not discuss with you information about risks and possible side effects, you may have a medical malpractice case on your hands.
The same may also be true for medication.
For example, if you experience a stroke after being prescribed a medication but weren’t warned about the risks, that could be considered medical malpractice.
How Do I Prove Medical Malpractice?
It can be difficult to prove but it can be done with the right personal injury attorney.
Although each case is different, there are four components in each medical malpractice case.
- The existence of a doctor-patient relationship. When you become a patient of a doctor, they’re required to provide you with a certain level of care. So, the first order of business is to prove you are a patient of the doctor.
- Negligence of the medical professional. Because the medical profession requires a certain level of education, your lawyer will probably use expert witnesses to determine whether your doctor actually acted responsibly within the level of care owed to you.
- Proof you experienced an injury. It’s one thing to claim you’ve experienced injuries, but your lawyer must be able to prove those injuries. To do this, you should keep copies of medical treatment reports, medication prescriptions, etc.
- Your injuries were the direct result of negligence by the medical personnel. Essentially, this means we need to be able to prove your injuries would not have happened if not for the occurrence of medical malpractice.
Medical malpractice cases involve a lot of time and resources. The sooner you contact an experienced lawyer, the better. If you even suspect you may have experienced medical malpractice, you need to contact an attorney as soon as possible.