What is the Difference Between Express and Implied Consent?

Patients have the right to be informed about any treatment or procedure a physician wishes to conduct. It is a healthcare provider’s duty to ensure patients can make informed decisions regarding their health. There are two different types of consent that can be given: express and implied. 

What is Express Consent? 

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: 

• The patient’s diagnosis
• The proposed procedure or course of treatment 
• A thorough description of the procedure or treatment
• The benefits of the procedure or treatment, as well as possible side effects and risks 
• The potential consequences of not going through with the treatment
• The expected outcome 
• Any alternative treatment options, if they exist
• Why the physician believes that the recommended procedure or treatment is the best option

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. 

What is Implied Consent? 

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 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. 

The Main Difference Between Express and Implied Consent

The main difference between express and implied consent is how they are given. Express consent is typically written or verbally, whereas implied consent in medical situations is presumed by your actions. 

Cases involving consent violations can be tricky. To find out if you may have a valid medical malpractice lawsuit, speak to a St. Louis Medical Malpractice Lawyer at Goldblatt + Singer. We offer free consultations; call (314) 888-1000 or reach us online today.