Express vs. Implied Consent: What’s the Difference?

Whether you’ve realized it or not, you’ve likely been required to give your consent to treatment any time you’ve sought medical attention. That’s because in the healthcare field, the idea of consent is fundamental to delivering comprehensive, responsible care. Patients often find themselves visiting healthcare facilities when they are already at their most vulnerable so it’s crucial that they understand and agree to any care being offered to them.

If a patient is denied the opportunity to give their consent to treatment, the consequences – for both patient and provider – can be severe. In addition to violating the trust and autonomy of patients looking for compassionate care, failure to obtain a patient’s consent can actually result in legal action against a negligent provider or facility. Let’s take a closer look at the nuanced issues around express vs. implied consent in healthcare settings and discuss how consent can play a role in a medical malpractice suit.

What is consent?

Broadly speaking, the term “consent” refers to a voluntary agreement by one party to the request or demands of another. If you give your consent to be videotaped, for example, this means you are giving another person or entity permission to film you with a camera. If you consent to share some of your lunch with a coworker, that means your coworker is allowed to eat whatever portion of your lunch you have allotted for them.

In a medical setting, consent plays a vital role in ensuring patients are informed about and agree to the medical intervention they are slated to receive. Prioritizing consent in provider-patient relationships ensures that individuals seeking care can retain control over their own bodies while making decisions about the kinds of treatment they may undergo. When consent is not properly obtained, it may constitute a violation of the patient’s bodily autonomy and open the door to claims of negligence or medical malpractice.

Express consent: Medical definition

Patients give their express consent (also called expressed consent) when they give a healthcare provider clear, direct permission for a medical procedure or treatment. Express can be given verbally or in writing and is explicit and specific in nature.

Here are a few examples of express consent in a medical setting:

• A patient signs a consent form giving a surgical team permission to perform a specific operation
• A patient verbally agrees to a proposed treatment plan during an appointment with their primary care physician
• A patient initials a consent line on a medical intake form when seeking care at their local emergency room
• A patient signs an agreement form when enrolling in a clinical trial for a new prescription medication

Even though patients generally seek medical care because they WANT or NEED treatment, they still have a right to refuse any treatment that does not align with their values or that they feel may pose a risk to their health and happiness. Consent is key to ensuring patients receive care that leaves them feeling seen, heard and understood.

A note on informed consent

Most major procedures require not just express consent, but informed consent in order for treatment to be rendered. This means healthcare providers must give patients comprehensive, easy-to-understand information about:

• The nature of the procedure
• Potential benefits and outcomes
• Documented risks and side effects of the treatment
• Any available alternatives

Think of it this way: In order for a patient to agree to a treatment or procedure, he or she must first know what they are agreeing to in the first place. Failure to give patients sufficient information about an intervention prior to rendering care may result in a patient’s express consent being deemed invalid.

If the patient’s express consent is found to have been given in the absence of adequate information, the patient may have cause to file a medical malpractice claim for any harm they suffer as the result of the errant procedure.

What about implied consent?

Sometimes, a patient is not in the position to give written or verbal consent prior to receiving medical treatment. This conundrum most often arises in emergency situations but can also show up in more routine medical contexts. In practice, implied consent might look like a patient rolling up their sleeve for a blood draw after a provider explains the procedure or an unconscious patient receiving emergency treatment even though their express consent could not be obtained.

In more pedestrian cases, healthcare providers must use their best professional judgment to determine whether or not the patient’s actions suggest they do or would consent to treatment. In emergency situations, implied consent often looks like a healthcare provider making a snap judgement as to whether they believe a reasonable person would likely consent to treatment based on the circumstances at hand.

It’s important to note, however, that implied consent is generally only acceptable in routine or emergency care scenarios. This means doctors and other providers cannot use implied consent to justify performing a significant procedure without the patient’s full understanding and permission.

What happens if a doctor does not obtain consent?

If a doctor or other healthcare provider fails to obtain a patient’s consent prior to performing a procedure or rendering care to a patient, they could be considered liable for medical battery or negligence. Both of these charges constitute medical malpractice and may serve as the basis for a civil lawsuit. Performing medical procedures on a patient without their consent constitutes a major violation of the victim’s autonomy and could result in significant consequences like:

• Immediate and long term physical harm to the patient
• Emotional and psychological distress for the patient and their loved ones
• Legal action in the form of civil lawsuits and even criminal charges for cases involving particularly egregious conduct
• Professional disciplinary measures like license suspension or revocation for the provider
• Financial compensation owed to the patient for damages related to the violation

If a doctor performs a procedure or treatment without a patient’s consent, they may be considered liable for any harm they cause as a result. An experienced medical malpractice attorney can help patients determine whether or not any medical care they received may have been rendered without their consent and advise them of what legal options are available based on the specifics of their case.

What damages are available to plaintiffs in medical consent cases?

If the court determines that you were the victim of medical malpractice, you may be awarded compensation to cover the physical, emotional and financial costs associated with your experience. Compensatory damages in medical malpractice cases may be awarded to help plaintiffs cover:

• Medical bills
• Therapy costs
• Medication costs
• Lost wages
• Reduced earning capacity
• Pain and suffering
• Emotional distress
• Loss of enjoyment of life

If a physician’s conduct rises to the standard of medical battery, they may also face criminal charges brought by the state. It’s important to note that a civil medical malpractice suit is entirely separate from a criminal case and victims are permitted to file a civil claim for compensation regardless of whether or not a criminal case is initiated.

Final thoughts

Understanding the difference between express and implied consent is key to knowing and exercising your rights as a patient. While both forms of consent play a critical role in protecting patients in healthcare settings, only express, informed consent offers the full protection patients deserve at vulnerable moments in their lives.

Whether you already have evidence of having had your right to consent violated or are just beginning to question whether something happened to you without your permission, the sooner you can take action, the better. The experienced medical malpractice attorneys at Crandall & Pera Law, LLC are standing by to offer support to victims of medical malpractice across the states of Kentucky and Ohio. Give us a call today or contact us online for a free consultation.