What is the Difference Between Express and Implied Consent?
When you go to the hospital or doctor, you may be required to sign a consent form. The purpose of the consent form is to give the doctor or medical facility permission to treat you.
Most people do not read the entire medical consent forms. That fact is one reason that doctors must obtain informed consent from their patients for many of the procedures and treatments they prescribe.
What is Informed Consent?
Informed consent is the decision to proceed with a treatment or medical procedure after learning more about the treatment or procedure. Doctors have a legal and ethical duty to give their patients enough information for the patients to make a decision related to their health care. Informed consent may be express or implied.
A lack of informed consent could be the basis of a medical malpractice case if the lack of consent resulted in harm to the patient.
Failing to get consent for a procedure may not rise to the level of malpractice without injury or harm to the patient. For malpractice to exist, the patient must have sustained injury or damages because of the doctor’s medical negligence or wrongdoing.
What is Necessary for Express Consent?
Some procedures and treatments require that a patient give express consent. Express consent is generally given in writing. However, verbal express consent is acceptable in some situations.
Express consent cannot be given unless the patient has certain information about a medical procedure or treatment. The theory is that a patient cannot give express consent unless the patient is fully informed about the procedure or treatment.
Therefore, a doctor is required to provide information the patient can use to decide whether to proceed with the doctor’s recommendations. Information that a doctor is required to supply for express consent includes:
- A description of the illness or condition that requires treatment
- The name and description of the proposed treatment or medical procedure
- An explanation of how the procedure or treatment is performed
- Information regarding the benefits and potential risks associated with the treatment or procedure
- Information regarding any risks that might be associated with choosing non-treatment
- The results the doctor anticipates that the patient should receive from the treatment or procedure
- Any alternative forms of treatment that may be available
- An explanation of why the doctor chose this specific treatment or procedure as the best choice for the patient
The patient considers the information provided by the doctor and decides whether to proceed. If so, the patient generally signs a form indicating the patient received the information and wants to proceed.
Surgery is a common example of the requirement for express consent. Participating in a research group is another example of a case that requires express consent. Receiving anesthesia is another example of the necessity of having informed consent.
When is Implied Consent Acceptable?
A doctor does not always need express consent in all situations. Implied consent may be sufficient in many situations.
For example, disrobing in a doctor’s office and following the doctor’s instructions is generally viewed as implied consent for a physical that the patient requested. Rolling up your sleeves and putting your arm out for a blood test is another example of implied consent.
Emergencies are another example of implied consent. If you are unconscious, a doctor can provide reasonable and necessary medical treatment to save your life without your express consent. The same theory is used when a minor requires emergency care, but a guardian or parent is not available to consent to the treatment.
Implied consent applies during surgeries when there are complications. It is presumed that you give your consent for the doctor to take steps to save your life or protect your health when an unforeseen complication requires treatment.
What Should I Do if I Did Not Consent to Medical Treatment?
If you believe that your doctor failed to gain your consent, talk with a medical malpractice lawyer. A lawyer reviews the case to determine what level of consent was required. The attorney also determines if the doctor met all the necessary requirements for informed consent.
When a patient suffers harm because of a lack of informed consent, the patient may be entitled to compensation for damages. Damages in a medical malpractice claim may include:
- Medical bills and expenses
- Loss of income and benefits
- Pain and suffering damages
- Permanent impairments and disabilities
- Decreases in earning capacity
Texas limits the amount of compensation a person can receive for non-economic (pain and suffering) damages in a medical malpractice claim. There is not a cap on damages for economic losses, such as lost wages and medical expenses.