What Is the Difference Between Express and Implied Consent?

April 15, 2024 | Medical Malpractice

What Is the Difference Between Express and Implied Consent?

Consent is a critical issue in medical malpractice law, and medical treatment in general. Performing medical treatment on a patient without their informed consent can get a doctor into a lot of trouble. 

Consent is useless unless it is informed consent. The patient (or, if they are a child or mentally disabled, their parent or guardian) needs to know the risks and likely consequences of the procedure. If not, then then there is no real consent. 

A patient has informed consent when they understand the nature, risks, benefits, and alternatives to the proposed treatment. Consent must also be voluntary.

You can divide consent into two different forms–express consent and implied consent.

You provide express consent when you sign a consent form, for example. This is the most popular form of express consent. 

You also provide express consent when you offer verbal consent to a procedure. At a pharmacy, for instance, you might tell the pharmacist, “I need a flu shot.”

Doctors have patients sign consent forms before treatment to protect themselves against liability. A well-written consent form will include or request at least some of the following information and perhaps some information not listed here: 

  • Your identification information
  • A description of the proposed treatment
  • An explanation of the purpose of the treatment
  • An explanation of the benefits of the treatment
  • Possible risks and complications
  • Information on alternative treatments
  • A statement that you have the right to decline treatment
  • Information about the expected recovery process
  • Possible side effects
  • A privacy statement about the uses of your medical information
  • A space for patient questions and the answers provided by healthcare staff

One common problem occurs when the consent form is in English, and the patient does not understand that language.

It would be impractical to have patients sign consent forms for everything that might happen in a healthcare facility. In many cases, implied consent is all you need. 

Implied consent occurs when you consent nonverbally or a healthcare provider presumes your consent due to the circumstances. 

Below is a list of actions that generally constitute implied consent: 

  • You hold out your arm in response to a nurse’s preparation to take your blood sample.
  • You walk into a walk-in clinic and sit in the waiting area, implying your consent to general medical evaluation.
  • You open your mouth for a dental exam.
  • During an emergency in which you cannot speak, you nod your head in response to a doctor’s question about performing a medical procedure such as a tracheotomy.
  • You return for a follow-up appointment after an initial consultation, indicating your agreement to ongoing treatment.
  • You are unconscious, and the doctor assumes your consent to perform life-saving medical treatment (in other words, the doctor presumes that you want to remain alive).

Doctors normally imply consent only for certain specific (and usually minor) treatments.  

Settlement vs. Litigation: Which is Better?

Statistically, you’re far more likely to sign a settlement agreement than to go to trial. That’s okay since most people prefer to settle out of court. Settlement is typically easier, quicker, and cheaper than litigation. 

This is especially true in medical malpractice claims, where doctors see malpractice lawsuits as attacks on their reputations. They’d rather settle in private than risk their reputation in open court.

An Experienced Medical Malpractice Lawyer Can Help You Demand the Compensation You Deserve

Do you wonder whether you have a medical malpractice claim? The reality is that a medical malpractice claim is nothing you want to handle on your own.

Set up a free initial case consultation with a medical malpractice attorney to explore your legal options. Don’t worry if you’re broke; your lawyer works for free unless they win. 

If they win, their fee amounts to a certain percentage of your total compensation. This is the way the personal injury law contingency fee system works.

Contact Our Medical Malpractice Lawyers in San Antonio, TX

If you’ve been injured by another negligence in San Antonio, Texas, and need legal help, contact our San Antonio medical malpractice lawyers at George Salinas Injury Lawyers to schedule a free consultation today.

George Salinas Injury Lawyers
6243 I-10 Ste. 955, San Antonio, TX 78201
(210) 225-0909