What’s the Difference Between Express and Implied Consent?

Before a person undergoes a medical procedure or any type of medical treatment plan, a healthcare professional must generally get the consent of that person. If a healthcare professional fails to get the consent of a patient before they undergoing treatment, they could be held liable for medical malpractice. However, there are two types of consent that patients need to be aware of when it comes to determining whether or not a medical professional has committed negligence and could be held liable through a medical malpractice lawsuit.

“Express” or “informed” consent explained

In general, most patients give their informed or express consent before they undergo a medical procedure. Typically, this consent is given in writing with a patient’s signature (or the signature of their legal guardian).

Express written consent is generally required for surgeries or other major types of treatment. This type of consent requires more than just a patient agreeing to a procedure. The patient must be properly “informed” about what will occur beforehand. There are four major components of informed consent:

  1. That the patient has the capacity to make the decision
  2. The medical provider discloses information on the treatment, test, or procedure in question. This includes explaining the expected benefits and risks, as well as the probability of these benefits and risks occurring.
  3. The patient must comprehend the information told to them.
  4. The patient must voluntarily give their consent, without any coercion from the healthcare professional.

“Implied” consent explained

There are also times when consent is “implied” rather than “expressed,” and this type of consent can apply to both non-emergency and emergency situations.

For example, if your doctor says that you are at high risk of getting the flu and recommends you get a flu shot, and did you do so without signing any documents or actually telling the doctor verbally “I consent to this shot,” you have still been deemed to have given implied consent to receiving the flu shot.

The nature of medical emergencies often does not allow patients to give their consent for a necessary medical procedure. If a patient is unconscious when they arrive at hospital, and it is determined that they need immediate surgery, implied consent will apply in this situation and allow the surgery to be performed.

Can a consent violation be grounds for a medical malpractice lawsuit?

If you or somebody you care about has undergone a medical procedure that you did not specifically give consent for, you may wonder whether or not you can bring a medical malpractice lawsuit against the medical provider or the healthcare agency where they procedure occurred.

On its own, a consent violation will not be enough grounds to prove that the medical provider acted negligently. For a medical malpractice lawsuit to be successful, the patient must prove that they were harmed by the medical provider in question and that the harm was a direct result of the consent violation.

For example, a patient may show that the “informed” consent that they gave was not truly informed because the doctor did not tell them about a complication that had a reasonably well-known possibility of occurring that then occurred.

It could also be the case that a medical provider fails to properly describe a complication on the consent form. For example, if a complication is known to occur at a 5% rate during the procedure, but the consent form states that it only occurs 1% of the time, then the patient would have been unable to truly give informed consent. The patient could argue that they would not have given consent if they had known the actual risk they faced.