Express vs. Implied Consent


Understanding the difference between express vs. implied consent is crucial in healthcare to ensure patients' rights and doctors' legal protections.

Many legal disputes can arise based on disagreements over whether one person gave another person consent or authorization to perform a particular action. When administering medical care, a health professional needs to explain the risks and receive your permission to perform the procedure or treatment. Sometimes, a doctor may seek your express consent through an authorization form, and other times, implied consent might suffice. 

If a physician performs a medical procedure without your permission or does not adequately advise you of the risks associated with a procedure, you may qualify for a medical malpractice claim. Contact our team of qualified medical malpractice lawyers at O’Connor, Parsons, Lane & Noble today. Our team can answer any questions you have about express vs. implied consent and determine whether you qualify for a medical malpractice claim. 

What Is Express Consent?

A person gives express consent when they communicate their permission clearly and directly. This may occur by signing authorization waivers that provide express consent for a particular treatment or by making a clear verbal statement indicating your permission. In the medical world, express consent is also referred to as informed consent. According to the American Medical Association, informed consent occurs when communication between a patient and physician results in the patient’s authorization or agreement to undergo a specific medical procedure. In seeking a patient’s informed consent, a physician should:

  • Ensure the patient can understand the medical information and implications of treatment enough to make an informed decision;
  • Present relevant information about the patient’s diagnosis, the nature and purpose of recommended treatments, and the burdens, risks, and benefits of all options; and
  • Document the informed consent conversation and the patient’s decision in the medical record.

A patient can only make an informed decision about their future medical treatment once they understand the risks and rewards of any intervention plans. In many cases, a physician will obtain express consent in written form. This makes express consent easier to prove than implied consent in most cases.

Still, in emergency situations, a doctor may be forced to make urgent decisions without input from the patient. In these scenarios, the doctor must advise the patient as soon as possible and obtain consent to continue treatment.

What Is Implied Consent?

A person gives implied consent in an indirect manner, typically through their conduct. For example, if a person lines up in a queue where people are getting their face painted, it is reasonable to believe they are consenting to have their face painted as well. 

Implied consent is typically harder to prove because there is no documentation that shows you agreed to a procedure. Implied consent disputes give rise to medical malpractice claims when a patient claims they did not give consent, but a doctor claims they received implied consent. In that case, an attorney can help build a case to demonstrate the physician did not receive consent.

Examples of Express vs. Implied Consent

The ways you can give a physician express consent are fairly limited. Examples of how to give express consent include:

  • A verbal discussion agreeing to a particular form of treatment,
  • Signed authorization for a certain form of treatment, and
  • Written correspondence between you and your doctor agreeing on a treatment plan.

Any of these examples constitute express consent. However, if your doctor does not properly advise you of your treatment options, your diagnosis, or the potential risks and rewards of any treatments, even express consent may not be sufficient to create informed consent.

Implied consent is less obvious than express consent. Some examples of a patient providing implied consent include:

  • A doctor or nurse asks to take your blood pressure, and you hold out your arm;
  • Arriving for a flu shot and rolling up your sleeve in preparation;
  • Scheduling bloodwork and voluntarily holding out your arm for the nurse or doctor to take your blood; and
  • Stepping onto a scale when a doctor asks to measure your weight.

Additionally, you may give your doctor implied consent to proceed with any other treatment they deem necessary during your procedure.

What Damages Can I Recover If I Did Not Give Consent for Treatment?

If a physician performs a procedure without your consent, you may seek damages through a medical malpractice claim for the harm you suffered as a result. It is critical to save your hospital bills and other documentation that will help a malpractice attorney calculate your damages. Damages you may recover in a medical malpractice claim include:

  • Cost of future medical treatment,
  • Lost wages,
  • Cost of medical bills,
  • Loss of quality of life,
  • Rehabilitation costs,
  • Pain and suffering,
  • Loss of future earning capacity,
  • Loss of consortium, and
  • Emotional distress.

The damages in every malpractice claim differ based on the circumstances of the case. Our team at O’Connor, Parsons, Lane & Noble will help you calculate the compensation you are owed.

If You Have Questions About How to Give Express Consent, Contact O’Connor, Parsons, Lane & Noble Today

In many cases, a physician must obtain informed consent before performing a medical procedure. However, your express consent may not be sufficient if your doctor does not properly advise you of your diagnosis, treatment options, and the risks and benefits of all treatment options. If you or a loved one had to undergo additional treatment or experienced other pain and suffering because a physician performed a procedure without proper consent, contact O’Connor, Parsons, Lane & Noble today.

At O’Connor, Parsons, Lane & Noble, our history of success and professionalism has gained our peers and clients' respect. Our team achieved the largest medical malpractice verdict of its kind in New Jersey. Our mission is to ensure our clients get the attention they deserve. In addition, in 2021, seven of our attorneys were selected for inclusion on the 2021 “New Jersey Super Lawyers and Rising Stars” lists. Contact our office today to schedule your free, no-obligation case review. If you think you have a malpractice claim, you have nothing to lose by speaking to us about your case.

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