What is the Difference Between Express and Implied Consent?

What is the Difference Between Express and Implied Consent

A doctor must take their patient’s consent before beginning any medical procedure or treatment. If a doctor undertakes a procedure without a patient’s consent. And, it ends up in the patient getting injured. Or if their situation worsens, the patient can file a malpractice lawsuit against the doctor. It’s a doctor’s duty to inform the patient about their condition, and what treatment and procedures they need. And let the patient decide if they want to go ahead with the treatment plan.

There are two types of consent in healthcare situations. Express consent and implied consent. Express consent involves clear, written consent from the patient before a doctor can perform a procedure on them. But, in the case of implied consent, they presume the patient’s consent.

This blog post explains the two types of consent in detail. So that you know how they are different and which consent a patient needs and when.

Express Consent

Express consent is often referred to as informed consent. In the case of informed or express consent, the doctor takes written consent from the patient. The patient has to authorize a medical document. Once the patient has signed this document, the doctor has the patient’s consent to begin a medical procedure. It can also be done verbally, but ideally, it’s taken in written form.

In the case of express consent, the physician provides the patient with information about their condition and the course of treatment so that the patient can make an informed decision (hence the name, informed consent) about whether they want to proceed or not.

A doctor is required to secure express consent in the case of most surgeries, blood transfusions, vaccinations, biopsies, chemotherapy and radiation, anesthesia, and HIV testing.

The doctor provides the patient with an authorization form with all the information about the patient’s case. The patient goes through the information and gives their consent by signing the authorization documents. Some pieces of information that an authorization form includes are:

  • Diagnosis
  • Proposed treatment plan
  • Details of the treatment procedures
  • What are the risks associated with it
  • How will the treatment benefit the patient
  • What side effects can a patient experience
  • What could happen if the patient doesn’t agree to the treatment
  • Alternative treatment options
  • Why the proposed treatment is the best option for the patient

The patient has the right to ask as many questions as they like and clear any confusions that they may have before making an informed decision.

Implied Consent

Implied consent isn’t verbal or written. Instead, in some medical situations, they presume the patient’s consent based on facts and circumstances. This type of consent the patient usually gives through actions. For example, when you go to a lab to get your blood work done, you roll up your sleeve and place your arm on the attending technician’s station. It’s your way of giving the technician your consent so they can draw a blood sample. The same is the case when you go to the doctor for a routine check-up. And you offer your hand for the doctor to check your blood pressure. In case the doctor feels like they need to perform any additional procedures, that’s when they’ll need express consent.

Consent is also implied if the patient is unconscious and unable to give express consent. Like in the case of accidents where the patient needs immediate surgery or treatment. In these cases, they use the patient’s implied consent. As the doctors assume that the patient would have agreed to the doctors treating them if they had been conscious. They also use implied consent if the patient has a mental illness or is intoxicated.

Express Consent vs. Implied Consent – The Difference

The major difference between express and implied consent is clarity. In the case of express consent, the doctor and patient require absolute clarity. The patient needs clarity about their diagnosis and treatment plan, and the doctor needs clarity about whether the patient agrees to proceed or not. There’s no room for assumptions in cases where express consent is needed. On the other hand, implied consent is based entirely on assumptions based on actions. Implied consent is hard to prove because there’s no verbal or written proof.

Medical Malpractice Claims and Consent

If you think your doctor didn’t provide enough information to help you make an informed decision. Then you can file for a medical malpractice claim. An experienced attorney will go through your case and review the consent type required. As well as, whether or not your doctor took it. But, you must remember that to win a medical malpractice case, you must have suffered harm or damage. Which they could have avoided. If your doctor had provided you with sufficient information so that you could make an informed decision. However, if you did not suffer any harm you wouldn’t get any compensation, even if your doctor was negligent.

Importance of Personal Injury Lawyers in Consent Cases

Personal injury lawyers have got the expertise to get you the compensation you deserve. In consent cases where the patient claims the doctor didn’t take their consent or failed to provide sufficient information, a personal injury lawyer can dig into the details to see if there are any chances of you getting compensation due to your doctor’s negligence.

You can withdraw or limit your consent at any time during the medical procedure. Just because you consented doesn’t mean you can’t change your mind. For example, if you gave express consent for the removal of tonsils and wisdom teeth, you can choose to get your wisdom tooth extracted only.

Educate yourself about medical and personal injury law so that you know the nitty-gritty in case you ever decide to file a medical malpractice claim against your doctor. Our legal blog Spirit One can offer a lot of information about personal injury law and help you understand the minor and major details better.

Written by SpiritOne

What is an Immigration Waiver and Who Can Benefit from it

What is an Immigration Waiver and Who Can Benefit from it?

What You Can't Include in Your Prenuptial Agreement

What You Can’t Include in Your Prenup