What Is the Difference Between Express and Implied Consent?
Informed consent is a legal requirement for most medical procedures. Informed consent means that the patient understands basic facts about the procedure and gives permission for the doctor to perform it. A doctor can subject themselves to a medical malpractice claim by failing to secure informed consent. There are two kinds of consent: express consent and implied consent.
What Information Do You Need for Your Consent To Be ‘Informed’?
“We’re going to be operating on your kidney,” without more, is absolutely inadequate. For your consent to be informed, you (or your parents if you are a minor) need to understand the following matters:
- The nature and purpose of the treatment;
- Potential risks and side effects, including their likelihood and severity.
- Expected benefits of the treatment.
- Information about alternative treatments, including the option of no treatment, and their risks and benefits.
- A comparison of the treatment with its alternatives.
- The expected outcome of the treatment.
- The likely consequences if you decide not to proceed with the treatment.
- Details about the recovery process.
- Any changes to lifestyle, diet, or activity levels that you may need during recovery.
- The cost of the treatment, insurance coverage, and out-of-pocket expenses.
- How your privacy and personal health information will be protected.
- Your right to refuse the treatment or withdraw your consent at any time.
- An opportunity for you to ask questions and receive clear answers.
Your doctor must confirm that you are mentally competent to understand the foregoing and to make a decision. If you aren’t, a legally authorized representative must offer consent on your behalf.
Definition of Express Consent
You give express consent when you consent to medical treatment in writing or by verbal agreement. Below are some examples:
- Signing a consent form before surgery.
- Asking to receive a flu shot.
- Providing written consent for an MRI or CT scan.
- Giving your doctor verbal permission to conduct a physical examination.
- Signing a consent form to authorize your participation in a clinical trial.
- Verbally agreeing to a dental procedure.
Expressed consent, then is based on words—either written or spoken.
Definition of Implied Consent
Implied consent is a type of consent inferred from your actions or the circumstances. This type of consent must indicate agreement to medical treatment without explicit verbal or written confirmation. Here are some examples:
- Rolling up your sleeve for a vaccination.
- Nodding your head when a doctor explains why you need a routine physical examination.
- Arriving at a hospital and registering for a scheduled procedure.
- Lying down on an examination table for a check-up.
- Showing up for a scheduled follow-up appointment.
- Removing your clothing in preparation for a medical exam.
- Taking prescribed medication.
- Allowing a healthcare provider to administer an X-ray or blood pressure check without objection.
- Bringing a child to a medical clinic for vaccination (indicating parental consent).
Many more examples are possible. To a large extent, implied consent is based on circumstances and common sense.
‘Assumed Consent’
‘Assumed consent,’ often referred to as implied consent in emergency situations, is a type of implied consent that healthcare professionals use if you cannot communicate your wishes. Under the right circumstances, a doctor can assume that you would agree to necessary medical treatment when you are unconscious or otherwise unable to give express consent. Below are some examples:
- Performing life-saving surgery while you are unconscious after a severe car accident.
- Administering emergency medications while you are suffering from a severe allergic reaction and unable to breathe, much less communicate.
- Providing CPR while you are unresponsive and lacking a pulse.
- Treating you after you arrive at the emergency room in a coma after a drug overdose.
- Intubating you due to obstructed airways that prevent you from speaking.
- Administering blood transfusions while you are in shock from severe blood loss.
- Treating a child brought to the hospital unconscious and alone.
Ultimately, the rationale for assumed consent is the idea that a doctor has the right to assume that you want to live or that you want medical treatment when you are not in a position to express your preference. The availability of assumed consent is one of the major motivations for creating living wills and advance directives.
Contact a Medical Malpractice Lawyer for Help
If you believe you might have a viable medical malpractice claim, it is critical that you do not try to handle the claim on your own or with the help of an inexperienced lawyer. An experienced medical malpractice lawyer can fight for your rights and (probably) resolve your claim through settlement instead of trial.
Under the contingency fee billing system that most medical malpractice lawyers use, you don’t pay a dime in legal fees unless they win compensation for your claim.
For more information, please contact the Jacksonville and Ponte Vedra medical malpractice law firm of Baggett Law Personal Injury Lawyers at the nearest location to schedule a free consultation today.
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