March 17, 2022 | Personal Injury
Consent can be a crucial issue in some personal injury cases. When you consent to something, you agree to an action. There are two types of consent: express and implied. Understanding the difference between the two is important because it could affect your ability to file a personal injury claim if you have been negligently injured by medical malpractice.
Medical malpractice can occur in a variety of ways. One such way is when a healthcare provider does not receive informed consent from a patient before beginning treatment.
The right to receive damages for medical negligence could depend on whether you consented. The medical provider may claim that they had your consent to provide treatment or perform medical procedures. However, the consent may not have been informed consent. Continue reading to learn more about the different types of consent and their legal ramifications.
What is the Difference Between Implied Consent and Express Consent?
Express consent is your conscious, voluntary agreement to receive medical treatment or undergo medical procedures. For example, before surgery, you sign numerous documents giving the hospital, surgeon, anesthesiologist, and other health care professionals consent to perform surgery and provide necessary medical treatment.
Likewise, an oral surgeon may require you to sign a special consent form before he takes out your wisdom teeth. On the other hand, a dentist may not require a signed consent form to clean your teeth or take an x-ray. Opening your mouth may be considered your implied consent to the procedure.
Your actions give implied consent. For instance, rolling up your shirt sleeve and allowing a nurse to give you the flu shot may be considered informed consent. The same is true when you put your arm out for a nurse to draw blood. Again, your actions imply your consent.
Because lack of consent can result in a medical malpractice lawsuit, most doctors and health care providers have detailed, written consent forms they require you to sign before providing any care or treatment. Failing to obtain consent before performing treatment or a medical procedure could result in negligence and liability if the patient sustains harm.
How Does Informed Consent Relate to Express Consent?
Doctors must go one step further to satisfy the consent requirements for performing medical procedures and treatments. For example, they generally must receive informed consent before treating a patient. Not all express consent is informed consent.
Patients have the right to make medical and healthcare decisions based on all relevant information. In other words, they need to be “informed” before they provide consent. Therefore, doctors have a duty of care to provide sufficient information for patients to make informed decisions.
Information required for informed, express consent in a medical situation includes:
- The name and description of the medical treatment or procedure the doctor recommends
- The description of the health condition or illness that requires treatment
- A discussion of the benefits and risks of the medical procedure, test, or treatment
- The potential risks the patient faces for declining the treatment
- A description of available alternatives to the prescribed treatment
- A discussion of why the doctor believes the prescribed treatment is necessary and better than the alternatives
A patient may question the doctor about any information provided or information the doctor did not provide. The patient has the right to receive answers to all their questions before they provide express consent for medical treatment or a procedure.
The patient may refuse the treatment or seek a second opinion from another doctor or healthcare provider. The decision for treatment rests solely with the patient.
Are There Exceptions to Requiring Express Consent?
Express consent is often given in writing. A written acknowledgment of informed consent helps protect the doctor from medical malpractice claims. However, a written consent form does not absolve doctors from liability in all cases.
Doctors can sometimes rely on implied consent instead of going through the steps to obtain informed consent. For example, minimally invasive procedures that do not pose a significant risk to the patient may not require informed consent. As discussed above, drawing blood could be an example of implied consent.
Also, emergencies are often exceptions to the requirement to obtain informed consent. It is generally presumed that a person would consent to medical treatment that saves their life.
Therefore, unconscious patients are frequently an exception to the requirement of informed consent. In addition, if taking time to provide information about the medical treatment would result in the person’s death, the requirement for informed consent may be waived.
Clarity is the Primary Difference Between Implied and Express Consent
When you give express consent, it is clear that you want the medical provider to proceed with the treatment or procedure. There is no doubt about your intent. You give your consent in writing or verbally.
However, implied consent can be more challenging to prove. You would need to look at what a reasonable person would infer from the patient’s actions to determine if they gave consent.
In either case, being “informed” could come into play during a medical malpractice case. Regardless of whether you signed a form for medical treatment, it is wise to seek legal advice from an Oklahoma City personal injury lawyer. An attorney will evaluate the facts and circumstances to determine if you have a medical malpractice claim against your doctor or other medical providers.
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