What is the Difference Between Express and Implied Consent?
Posted in Medical Malpractice on July 23, 2021
When seeking treatment from a medical provider, patients retain certain rights. Patients have the right to obtain copies of their medical records when requested. Patients have the right to receive timely, responsive attention to their medical needs. Patients also have the right to receive information about potential treatments, including their costs, benefits, and risks.
Doctors have a duty to obtain consent from patients prior to administering most medical procedures or treatments—and if a doctor fails to uphold this duty, he or she may be liable for medical malpractice. In most cases, doctors must obtain express consent from their patients. There are some situations, however, where obtaining implied consent is acceptable.
What Is Express Consent?
Express consent, also known as informed consent, is the standard in most treatment cases. To provide express consent, a patient typically signs a medical authorization form that includes information about the treatment. In some cases, a patient may provide express consent verbally. However, surgical procedures, treatments involving anesthesia, and highly complex or experimental treatments require express written consent.
Before a doctor can obtain express consent, he or she must provide a patient with specific details about his or her treatment. Without sufficient information, a patient cannot adequately make an informed decision about whether or not he or she wants to proceed with the procedure. This required information includes the following.
- The name of the treatment or procedure
- The medical condition that requires the treatment
- A detailed description of the treatment, including its benefits and risks
- The risks that a patient would face if he or she does not choose to proceed with the treatment
- The potential results of receiving the treatment
- Any alternatives to receiving the treatment, or lack thereof
- The doctor’s opinion as to why this treatment is the best option for the patient’s condition
If a doctor does not obtain express consent when it is required, he or she may be liable for medical malpractice. As a result, most physicians take the time to explain procedures even if implied consent is provided.
What Is Implied Consent?
In certain cases, you may provide consent to a medical procedure without signing a form or providing an express statement. If you schedule a physical exam, for example, it is usually implied that you are providing consent for treatment. When you roll up your sleeve for a blood test or flu shot, it is also assumed that you are providing implied consent.
The presence of implied consent depends on the circumstances surrounding the medical procedure. For routine exams or vaccinations that you schedule appointments for, implied consent is usually accepted. Implied consent is usually presumed in an emergency situation; doctors have the right to take reasonable steps to provide life-saving medical care.
However, there may be situations where doctors violate implied consent by performing unusual or invasive procedures. If your doctor suddenly decides to perform an invasive procedure during a routine physical, he or she should obtain your consent. If he or she does not, you may be eligible for a malpractice claim.
If you believe that your doctor violated your patient rights and performed a procedure without your consent, contact a Kansas City medical malpractice lawyer as soon as possible. Your attorney can evaluate your case and determine whether or not you have grounds for a lawsuit against the negligent medical professional.