What is the Difference Between Express and Implied Consent?

Gregg Hollander | March 2, 2022 | Medical Malpractice

Consent is a person’s agreement to either do something or allow someone to do something to them. Consent is an important element in many legal relationships, such as parties to a contract. 

However, consent is also important in other legal matters. Consent is a factor in some personal injury cases, such as sexual assault and medical malpractice. Proving that a party is liable for damages could hinge on proving whether the victim gave consent.

Express consent is a clear, conscious, and willing statement of agreement that can be verbal or in writing. For example, you sign an authorization at the hospital giving your consent for the hospital to perform a CT scan or MRI. Likewise, you might sign a consent form at the dentist’s office for the dentist to perform specific procedures, such as routine cleanings, x-rays, or repair of a cavity. 

On the other hand, your actions may demonstrate implied consent. For example, if you go to the lab to have blood drawn, willingly placing your arm out for the technician to draw blood could imply consent. 

Consent can be a crucial element in some medical malpractice cases. For example, if a doctor performs treatments or procedures without the patient’s consent, the doctor could be negligent and liable if the patient suffers harm.

Informed consent is more than merely agreeing to a medical procedure or treatment. As a patient, you have the right to make informed decisions about your health care. Those decisions should be made based on all relevant facts in your situation.

Doctors owe you a duty to give sufficient information for you to make an informed decision regarding a procedure or treatment. Information that a doctor may be required to provide for express consent includes:

  • The name and description of the procedure or treatment
  • A description of the illness or condition that requires this treatment
  • A clear explanation of how the procedure or treatment is performed
  • The potential benefits and risks of the treatment or procedure
  • The potential risks of refusing the medical procedure or treatment
  • Any alternatives that may be available 
  • A discussion of why the doctor recommends this specific medical treatment or procedure instead of the alternatives 

The patient may ask as many questions as they desire about any of the information provided by the doctor. The patient may also ask questions about any other information needed to make an informed decision. 

After considering all information provided by the medical provider, the patient may choose to accept or refuse the treatment or medical procedure. 

Express consent for a procedure or treatment may be verbal or written. It can be more difficult to prove implied consent. Therefore, most medical providers generally require patients to sign a consent form before providing treatment or performing a procedure. 

However, doctors may rely on implied consent in certain situations, such as procedures that are minimally invasive and do not cause significant risk to the patient. In our example above, you give your implied consent to having blood drawn by sticking out your arm. Likewise, you give your implied consent to a flu shot by willingly allowing the nurse to administer the shot.

Emergency medical services may also be an exception to the requirement of express consent. For example, a doctor generally does not need express consent when a patient’s life is in danger, such as an unconscious person with severe trauma that is transported to the ER. It is presumed that the person would want the doctor to perform life-saving treatment in the absence of express consent. 

If complications arise during a procedure that the patient expressly agreed to beforehand, consent may be implied for the doctor to perform any treatment to save the patient’s life or protect their health. 

The main difference is the clarity of the consent. Express consent is extremely clear. The person verbally gives consent or signs a document stating they understand all risks involved and consent to proceed with the procedure or treatment. Implied consent is much more difficult to prove. 

However, even though the patient signs a consent form, the doctor may not have given the patient sufficient information to provide informed consent. If you have questions about the laws regarding your consent, talk with a Boca Raton, FL medical malpractice lawyer.

Contact Our Medical Malpractice Law Firm in South Florida

If you’ve been injured in an accident, please contact our experienced personal injury lawyers in Florida at Hollander Law Firm Accident Injury Lawyers to schedule a free consultation today. We have three convenient locations in Boca Raton, Fort Lauderdale, and West Palm Beach.

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Hollander Law Firm Accident Injury Lawyers – Boca Raton Law Office
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