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When it comes to medical treatment, patients have necessary rights, one of the most central being the right to say yes or no to the care they receive. Conversations about what is expressed consent often come up when a patient wonders how much control they truly have over their medical choices. Expressed and implied consent shape how healthcare providers interact with patients, and both can play a critical role in medical malpractice cases.
At Goldblatt + Singer, we have seen how misunderstandings around consent can lead to serious consequences for patients in St. Louis.
Expressed consent is often associated with a waiver of liability or a patient authorization form that is agreed to and signed prior to a risky procedure or treatment (though verbal express consent is permitted in some cases). It means you knowingly accept the risks associated with the procedure and/or treatment by signing an authorization form or verbally giving consent. A patient authorization form to provide express consent includes information, such as:
In cases of medical malpractice where express consent was given, it can be tough to recover compensation. Since patient authorization forms are essentially waivers of liability, they can protect a healthcare provider from being responsible for any injuries. However, if the physician makes an egregious error, such as performing surgery on the wrong body part or decides to perform a second procedure that is not an emergency situation, then you may have a valid medical malpractice claim.
Implied consent means you knew the risks involved in undergoing a particular procedure or treatment, and consent was implied through your actions. For example, if you attend a doctor’s appointment and the physician recommends a vaccination, then you roll up your sleeve, which is essentially giving implied consent to receive the vaccine. If you didn’t roll up your sleeve and did not say anything, but the physician still administered the shot, then you may have a medical malpractice claim for lack of consent.
In medical emergencies, for example, when an injured person arrives at a hospital and is somehow incapacitated, medical personnel will assume there is implied consent to save their life.
On the other hand, if you are at the doctor’s office for a routine well-check and you wind up requiring an invasive procedure that wasn’t planned, the physician must obtain express consent to perform it.
Express consent is the clear, intentional agreement a patient provides before a medical procedure or treatment. This usually happens in writing or verbally, often after the doctor explains the risks, benefits, and alternatives. Implied consent, on the other hand, refers to situations where a patient’s actions or circumstances suggest permission without explicitly stating it. The key difference is that express consent is deliberate and documented, while implied consent is assumed based on behavior or context.
For example, a patient signing a form for surgery provides express consent, while a patient who rolls up their sleeve for a blood draw gives implied consent. In medical malpractice cases, courts often focus on whether a provider had explicit express consent before performing invasive or high-risk procedures. This difference becomes crucial when patients claim their rights were violated, since implied consent is rarely enough to justify major medical interventions. Providers who confuse the two risk breaching their duty of care, leaving patients vulnerable to unnecessary risks and legal complications.
Express consent takes many forms in healthcare settings. It is most commonly required for procedures that involve risk, anesthesia, or long-term consequences. Examples include:
According to the Support Groups for Nurses, informed consent requires a patient’s signature or statement and adequate information from the provider to ensure the decision is voluntary and informed. A strong paper trail helps protect both the patient’s rights and the provider from future disputes. Consent forms in hospitals and clinics across Missouri are carefully crafted to ensure compliance with medical ethics and the law.
In Missouri, medical providers are required to obtain informed and voluntary consent before most medical procedures. For consent to be valid, several legal requirements must be met:
Courts in Missouri also consider whether the information given was reasonably understandable to the patient’s level of education and health literacy. Providers cannot rely on overly technical jargon or vague assurances. In fact, Missouri case law emphasizes that patients must be told about significant risks that a reasonable person would want to know before making a decision. This standard ensures that patients are not only informed but empowered to choose. Healthcare providers are also encouraged to confirm understanding by asking patients to repeat key details, reducing the chance of confusion and strengthening the validity of consent.
When these requirements are not followed, if the patient suffers harm as a result, a medical malpractice claim may be filed. These claims often focus on whether the missing information would have changed the patient’s choice if it had been disclosed.
Yes, patients have the right to revoke their consent. A patient’s right to change their mind is protected under federal and state law. According to the U.S Department of Health and Human Services, individuals can revoke an authorization at any time, but the revocation must be in writing. It becomes effective once the healthcare provider receives it. However, this does not undo medical actions before the revocation was submitted.
In practice, a patient can stop a treatment plan or refuse a surgery even after initially agreeing. Still, providers may not be liable for steps already taken based on valid consent. Patients considering revocation should communicate clearly and keep a copy of their written revocation for their records. This ensures no dispute about when and how the change was made. Open dialogue with the care team often helps ensure a smooth transition if treatment is discontinued.
Yes, lack of express consent may be the basis for a medical malpractice lawsuit. When a patient is not adequately informed or does not clearly agree to a procedure, the provider risks violating that patient’s rights. Claims based on lack of consent often arise when:
In these situations, the patient may pursue a malpractice claim to recover damages for physical, emotional, and financial harm caused by the lack of consent. Courts in Missouri generally examine whether the patient would have made a different decision had they been adequately informed.
Damages in these cases can include compensation for additional medical bills, lost wages, pain and suffering, and sometimes punitive damages if the provider’s actions were especially reckless. Lawsuits based on lack of consent can also influence future hospital policies, pushing providers to be more transparent and thorough when securing patient permission.
Consent is not just another form to sign; it is a person’s fundamental right to decide what happens to their body. Ignoring that right can leave lasting harm and destroy a patient’s sense of control. At Goldblatt + Singer, we have spoken with many families in St. Louis who felt their wishes were brushed aside or their choices were taken from them.
We understand how overwhelming it is to realize that you may never have properly approved a procedure that caused injury. If you question whether your consent was honored in a medical setting, call us at (314) 231-4100. We are here to hear your story, explain your legal choices, and fight to make sure negligent providers are held accountable.
Jeff Singer, Managing Partner at Goldblatt + Singer for over a decade, is a seasoned personal injury attorney known for his compassionate yet tough advocacy. He has resolved hundreds of cases and recovered millions for clients. Recognized as a Missouri Super Lawyer and Top 100 National Trial Lawyer, Jeff also serves on the Missouri Bar’s Chief Disciplinary Committee and the Board of Governors for the Missouri Association of Trial Attorneys.
This page has been created, edited, and reviewed by a team of legal writers following our thorough editorial guidelines. It was approved by our Founding Partner, Jeffrey Singer, who has over 30 years of experience as a personal injury attorney.
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