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Medical malpractice: Implied vs. express consent

On Behalf of | Jun 13, 2022 | Medical Malpractice |

As a patient, you have a right to be informed of any medical procedures or treatment that will be carried out on you. Doctors and physicians have an ethical and legal duty to make you aware of any possible risks associated with the treatment to enable you to decide whether or not to proceed.

However, consent does not mean that the healthcare provider can act outside the confines of the accepted industry standards of the medical profession.

The difference between the two types of consent

Express consent, otherwise known as informed consent, is provided verbally or by filling out a medical authorization form. This gives the doctor permission to proceed with the treatment course. Some procedures that require express consent include surgeries, blood transfusions, biopsies and most vaccinations.

Usually, the doctor is supposed to provide information like:

  • The patient’s diagnosis and a detailed description of the doctor’s proposed treatment
  • The expected outcome of the treatment
  • Any possible side effects and risks of the treatment
  • Any alternative options to the treatment, among other crucial information associated with the medical procedure

On the other hand, implied consent is not so direct and depends on your interactions with the doctor. For instance, If you willfully agree to get an injection by rolling up your sleeve, it implies that you have given your consent. Similarly, if you are unconscious after an emergency, the doctor will assume that you would have wanted to get help, and your consent will be implied in such a case.

What does it mean for your medical malpractice claim?

If a doctor fails to seek your consent or provide the necessary information about a medical procedure could amount to malpractice if you develop complications. However, even if you provided your consent, but the doctor was negligent when discharging their duties, they can still be held responsible for malpractice.