What is the Difference Between Express and Implied consent?

January 20, 2022 | Sagi Shaked | Medical Malpractice

A healthcare provider typically needs a patient’s consent before performing surgery or delivering any other form of medical treatment. A patient who suffered harm because a healthcare provider didn’t acquire consent can seek compensation for their medical bills and related losses. They may do so by filing a medical malpractice claim or lawsuit.

These types of cases can be challenging to prove. This is one of the many reasons to enlist the help of a qualified attorney when seeking compensation. A lawyer’s expertise in this area can improve a claimant’s chances of recovering full compensation.

Medical malpractice cases are complicated because the idea of consent is not as simple as it may appear. For example, the difference between express consent and implied consent may play a key role in your ability to recover the compensation you’re seeking.

What is Express Consent?

Express consent is exactly what it sounds like. When someone gives express consent, they directly consent to treatment. They may do so verbally, in writing, or even by reading and signing a form. Implied consent is a little more nuanced.

What is Implied Consent?

You don’t always need to provide express consent to permit a medical provider to treat you. Sometimes, your actions suggest consent to the treatment, even if you haven’t actually said so. 

Examples of implied consent may include the following:

• You go to the doctor to receive a shot and lift up your sleeve when they approach you with the needle
• You sign a waiver that gives a surgeon permission to take any additional steps required to save you if complications develop during surgery
• You fast for 24 hours before surgery according to your doctor’s orders
• You simply arrive to an appointment involving a routine and familiar procedure

Those are just a few examples. But they all demonstrate the difficulty of determining whether implied consent was given in some instances. This is yet another reason it’s smart to hire an attorney when filing a medical malpractice lawsuit. The insurance company may try to deny your claim by arguing that you gave implied consent to your medical provider.

This doesn’t mean their argument is rooted in the true facts of your case. Your attorney can counter the insurance company’s arguments.

The Importance of Being Informed When Giving Consent

There are some circumstances when a victim can appear to have given express consent without having done so. For example, maybe an insurer is arguing you gave express consent to a form of treatment because you signed a document before treatment.

This may sound like an open-and-shut case. However, suppose you were not informed of the nature of the treatment and the risks associated with it. In this case, you may not have consented to the treatment.

Sometimes, a healthcare provider can treat you without express or informed consent. They may do so if providing treatment will save your life in an emergency situation and your condition prevents you from consenting to treatment. Because a healthcare provider can’t get your consent in this situation, they also can’t inform you about the nature of the treatment they are delivering.

These are among the many factors that influence the potential complexity of a medical malpractice case. They once again emphasize why victims should not attempt to represent themselves when seeking compensation. If you believe you have been the victim of medical malpractice, you need to seek representation from a professional who has experience handling nuanced cases like yours. They will handle your case while you focus on your recovery.

Contact Our Personal Injury Law Firm in Miami, FL

If you’ve been injured in an accident in Miami, FL and need legal help, contact our Miami personal injury lawyers at Shaked Law Personal Injury Lawyers to schedule a free consultation.

Shaked Law Personal Injury Lawyers
20900 NE 30th Ave Suite 715
Aventura, FL 33180
(305) 937-0191