Express v. Implied Consent and Medical Malpractice

When you receive certain treatments, a health care provider needs your consent. Family members may give consent on your behalf if you were unconscious. Failure to obtain express consent could be considered negligence or even medical malpractice if you were harmed as a result.

What Is Express Consent?

Express consent is when you specifically consent/authorize medical treatment. However, just agreeing to the procedure is inadequate. You must give an “informed” consent, which includes information about:

  • Name of the procedure;
  • Any anesthesia or other medications that may be utilized;
  • Potential complications;
  • Additional surgical procedures that the surgeon may need to perform in the event of a complication;
  • Side effects of the procedure;
  • Risks associated with the procedure; and,
  • Alternatives to the procedure.

Generally, you are given a written consent form that embodies some or all of the above information. A doctor will arrive in your room to go over the form and answer any of your questions or concerns. After signing the written consent form you will then undergo the procedure.

A personal injury attorney in St. Augustine explains that the purpose of informed consent is to ensure that you understand the chances of success and failure of a given medical procedure.

What If I Did Not Consent?

Medical malpractice claims over lack of express consent occur when, for example, a surgeon performs surgery on the wrong body part or decides to perform a secondary, non-emergency, surgical procedure when the patient only consented to the single procedure identified in the consent form.

Express consent issues may arise when a complication occurs during the surgical procedure, but the consent form:

  • Failed to identify that particular complication as a potential complication;
  • Downplayed how common the complication occurs; or,
  • Differed from the doctor’s explanation or description of the complication.

Not every complication needs to be listed on the consent form. Generally, the more likely complications will be discussed, but not the rare ones. However, a personal injury attorney in St. Augustine will argue that although the complication is rare, it is a well-known complication that has been discussed in medical literature and therefore, you should have been informed for that complication.

What Is Implied Consent?

Implied consent is when consent is inferred from the circumstances. Patients often give implied consent to non-surgical medical treatment by having the treatment or procedure such as undergoing a physical examination or receiving a flu shot or vaccination.

Are There Exceptions?

There are circumstances when your express consent cannot be obtained:

1. Implied consent is given during emergency situations, such as:

  • You require immediate treatment but you’re unable to provide consent due to unconsciousness and lack of relative or guardian; or,
  • When responding to a complication during surgery.

2. Your parents, relative or guardian will provide consent if you are:

  • A minor; or,
  • Mentally incompetent to provide consent.

Contact a Personal Injury Lawyer in St. Augustine

For additional information, contact a personal injury attorney in St. Augustine with Canan Law at (904) 849-2266.


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