All patients have a right to be informed about any treatments and procedures a doctor has proposed. Physicians have a duty to make sure their patients can make informed decisions about their health.
There are two types of consent that a patient may give to their medical provider: express consent and implied consent. Express consent is typically done in writing, while implied consent is typically conveyed through a patient’s actions or conduct. Keep reading to learn more about the distinction between express and implied consent.
Express consent is also sometimes known as informed consent. A doctor will ask for express written consent in many medical situations. A patient usually gives express consent by signing a medical authorization form that authorizes a doctor to go ahead with a specific medical treatment or medical procedure. There are times when consent is expressed verbally, but typically it is done in writing.
The treating physician is required to provide the patient with a sufficient amount of information regarding their course of treatment so the patient can make an informed decision about whether to permit the doctor to proceed. Some of the typical types of information included in a patient authorization form include:
Many types of medical treatments and procedures require express written consent. Examples include:
When a doctor does not get express consent to perform a procedure or course of treatment, it can be grounds for a medical malpractice claim. That is why doctors typically fully explain treatments and procedures even if only implied consent is required.
In some medical situations, consent between the patient and the attending physician or other medical professional is implied. Implied consent depends on the facts and circumstances of the situation. While express consent is usually given on paper, and sometimes verbally, implied consent is generally provided through actions.
For instance, when you show up to your doctor’s office for your seasonal flu shot and roll up your sleeve, you are essentially implying that you consent to receiving a flu vaccination. The same applies if you go to a lab to have your blood drawn or if you showed up for a routine physical exam. By showing up for the exam, you are essentially consenting to the exam.
Now, if you have a routine physical exam and your doctor notices a medical issue or decides that they need to perform an invasive procedure or administer a course of treatment that wasn’t planned, then they will need to obtain express written consent from you to perform the procedure or administer the treatment.
Implied consent can also play a role in medical emergencies. For instance, if a person has been in an accident and is unconscious or otherwise unable to communicate, then medical personnel will assume that the victim would want them to render aid if they were conscious or could communicate. If a doctor needs to perform life-saving surgery on the unconscious victim of a car accident, for instance, consent is implied.
Consent can also sometimes be implied when a patient is intoxicated, suffering from a debilitating mental illness, very young or very old, or when a language barrier exists between the patient and the medical professional.
Consent can be expressed in written form or, in some cases, verbally. In most cases, you will sign a medical authorization form that includes all the information about your diagnosis, the proposed procedure or course of treatment, and the benefits, side effects, and risks of the procedure or treatment, among other things. You’ll sign the medical authorization form to give written express consent. Less commonly, express consent can be given verbally.
You absolutely can. Signing a medical authorization form is not like signing a mortgage. Even if you’ve already signed the medical authorization form, you can withdraw consent at any time up until the procedure has begun. If you have multiple procedures, you can also choose to limit consent rather than withdrawing it entirely.
For instance, if you have given authorization to have your tonsils and wisdom teeth removed and you decide that you only want your wisdom teeth removed, you can limit consent to your wisdom teeth.
Anytime you decide to withdraw or limit consent in a medical procedure, your physician will explain the risks of not going through with the procedure. If you choose to withdraw or limit written consent, you will sign a document making it official.
The essential difference between expressed and implied consent is that implied consent is usually understood through actions.
It can be much more challenging to prove implied consent in medical malpractice cases because it’s not a written agreement. But there are cases where even a medical authorization form does not include enough information for a patient to make an informed decision, which can be grounds for malpractice. This is sometimes called a lack of informed consent.
Medical malpractice claims involving consent can be complex and tricky to navigate. If you have questions about the law around implied or express consent, or if you were harmed because of a lack of informed consent, The Law Offices of Dr. Michael M. Wilson, M.D., J.D. & Associates are ready to review your case and help you determine your legal options for recovery. The consultation is free and confidential. Contact us now, we are here to help you!
Dr. Michael M. Wilson is an attorney and a physician who earned his undergraduate degree from the Massachusetts Institute of Technology and his legal and medical degrees from Georgetown University. He has focused in the area of medical malpractice for more than three decades and secured more than $100 million in settlements and verdicts on behalf of clients throughout the country. He is admitted to practice in the District of Columbia and New York as well as the U.S. Court of Appeals for the District of Columbia and the U.S. Supreme Court. He is listed in America’s Top 100 High Stakes Litigators.
