What is the Difference Between Express And Implied Consent?

Have you ever had to sign a consent to treatment form at the doctor’s office or the hospital? Consent to treatment forms give the medical facility and doctors permission to perform various treatments and diagnostic tests. Consent forms are legal documents that could impact your legal rights.

In some cases, a doctor must obtain a patient’s express consent to perform specific tests or medical treatments. The forms you sign agreeing to treatment are an example of express consent. 

Express consent requires your doctor to provide you with sufficient information for you to make an informed decision about whether to proceed with the procedure or treatment. The purpose of informed consent is to ensure that a patient is fully informed about the procedure or treatment before deciding whether to go forward. 

Information that a doctor must provide for express consent to be valid includes:

  • A description of the condition or illness that requires treatment 
  • The name and a description of the proposed medical procedure or treatment
  • An explanation of how the treatment or procedure is performed
  • A discussion regarding the potential risks and benefits of the treatment or procedure
  • A discussion of the risks of forgoing treatment
  • The doctor’s opinion of the results expected from the procedure or treatment
  • A discussion of the alternatives to treatment, if any exist, including the potential risks and benefits of the alternatives
  • An explanation of why the doctor believes the specific treatment or procedure is the best court of action in the patient’s case

A patient may ask as many questions as necessary to ensure the patient understands the information. After considering all information, the patient then makes an informed decision whether to go forward with the doctor’s treatment plan or decline the treatment or procedure. 

Express consent may be given in writing or verbally. However, most doctors require that the patient sign a consent form to protect the doctor from liability for failing to obtain informed consent.

There are situations in which the doctor is not required to obtain express consent to provide medical treatment or perform a medical procedure. Procedures that are minimally invasive with little to no risk are generally included in implied consent. For example, a patient can consent to the flu shot by asking for the shot and rolling up his sleeve to receive the flu shot.

If a person requires emergency medical services, the doctor generally does not need expressed consent. It is presumed the doctor has implied consent to perform life-saving medical treatments. It is also presumed that a patient gives implied consent for a doctor to perform necessary treatments to save a patient’s life or protect the patient’s health when complications arise during surgery or other medical procedure. 

If you suffered harm because of a lack of consent, you could be entitled to compensation for the damages you sustained. However, a lack of consent medical malpractice case is complicated. You need to consult a medical malpractice attorney as soon as possible.

Your doctor might suggest that you see a specialist for a second opinion and treatment if you have not already changed doctors. You will need medical evidence that you suffered harm because of a lack of informed consent. Your attorney may also consult other medical experts to gather evidence that supports your claim of medical malpractice.

Patients who are injured because of a lack of consent could be entitled to compensation for damages such as:

  • Past and future medical costs
  • Permanent impairments and disabilities 
  • Past and future loss of income and benefits
  • Decrease in earning potential
  • Physical pain and suffering
  • Emotional distress
  • Mental trauma and anguish

The amount of money you might receive for a medical malpractice claim involving lack of consent depends on the facts in your case. Each case is unique. Your lawyer works with you and your medical providers to determine the severity of your injuries and the extent of your damages.

Cases involving lack of consent have the same deadline for filing claims as other medical malpractice claims. The Statute of Limitations in Pennsylvania for medical malpractice claims is generally two years from the date of the malpractice.

However, the Discovery Rule may apply in your case. If your injury was not immediately known, you have two years from the date you knew or should have known about the injury and its relationship to the doctor’s actions. With very few exceptions, most medical malpractice claims must be filed within seven years of the date of the malpractice, regardless of when they are discovered. 

Because the deadlines in medical malpractice claims are complicated, it is best to talk with a medical malpractice lawyer as soon as possible to avoid missing the deadline to file a claim.