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What Is The Difference Between Expressed and Implied Consent?

Apr 25th, 2024  |  Legal Team  |  Firm News

When it comes to medical malpractice, the concepts of expressed and implied consent play crucial roles in determining the legitimacy of medical treatments, interventions, and decisions.

Defining Expressed Consent

Expressed consent, also known as explicit or direct consent, occurs when an individual provides clear and unambiguous permission for a specific action or decision. In healthcare settings, expressed consent typically involves patients affirmatively consenting to medical treatments, procedures, or interventions after receiving adequate information about the risks, benefits, and alternatives. This form of consent is often documented through written consent forms, verbal agreements, or electronic signatures, providing a tangible record of the individual’s agreement.

Implied Consent

In contrast, implied consent arises when individuals indicate their consent through actions, behaviors, or circumstances rather than explicit verbal or written agreement. Implied consent is based on the notion that certain actions or situations imply a reasonable expectation of consent. In healthcare, implied consent may be inferred when patients voluntarily present themselves for medical examination or treatment, implicitly acknowledging their willingness to participate in necessary healthcare activities. For example, a patient extending their arm for a blood pressure measurement implies consent for the procedure to be performed.

Key Differences Between Expressed and Implied Consent

Expressed consent is obtained before surgical procedures, medical treatments, or research participation, ensuring that patients actively participate in decisions about their care. Conversely, implied consent may be invoked in emergency situations where obtaining explicit consent is impractical or impossible, such as administering life-saving interventions to unconscious patients. While both are recognized in healthcare settings, expressed consent is typically preferred as it ensures clarity and transparency in patient-provider communication. However, regardless of the type of consent involved, healthcare providers have a duty to prioritize patient autonomy, respect individual rights, and ensure that patients are fully informed before undergoing medical treatment or intervention.

Consent and Medical Malpractice

Medical malpractice claims related to expressed and implied consent typically revolve around allegations that healthcare providers failed to obtain valid consent before performing medical treatments, procedures, or interventions. These claims may arise when patients allege that their healthcare provider:

Failed to Obtain Expressed Consent

  • Allegations may include instances where healthcare providers did not adequately inform patients about the risks, benefits, and alternatives of a proposed treatment or procedure.
  • Patients may claim that they did not provide voluntary, informed consent for the medical action in question, resulting in harm or injury.

Examples may involve surgeries performed without the patient’s explicit agreement, treatments administered without the patient’s understanding of potential side effects, or procedures carried out without proper authorization.

Violated Implied Consent

  • Claims may arise when patients allege that healthcare providers performed medical actions without their implied consent based on their actions, behaviors, or circumstances.
  • Patients may argue that they did not voluntarily present themselves for treatment or participate in healthcare activities, thereby refuting the presumption of implied consent.

Examples may include medical interventions performed on unconscious patients without clear indications of medical necessity or treatments administered without the patient’s understanding or acceptance of the procedure.

In both cases, medical malpractice claims related to expressed and implied consent hinge on demonstrating that the healthcare provider’s actions deviated from the accepted standard of care, resulting in harm or injury to the patient. Plaintiffs (injured patients) must establish that they did not provide valid consent—either expressed or implied—for the medical action in question and that this lack of consent directly contributed to their adverse outcomes.

A Lawyer Can Help

Navigating medical malpractice claims concerning consent can be complex and challenging. If you have experienced harm due to lack of consent, arrange a free consultation with a trusted Atlanta medical malpractice attorney today. We can help you pursue justice and the compensation you deserve.