What Is the Difference Between Express and Implied Consent?

Whether your healthcare provider had express or implied consent could impact the potential success of your medical malpractice claim. A medical malpractice lawyer can review your situation and determine how this difference may affect your claim.

Express consent is clearly and directly given. A patient may verbally notify their healthcare provider that they give consent or sign a form that states this information. 

Healthcare providers are usually required to obtain express consent before admitting a patient for treatment or treating a patient unless there is an emergency situation. The riskier the procedure, the more critical it is for the healthcare provider to obtain clear and informed consent. 

Patients have the right to understand the medical treatment they are considering and its potential consequences.

To be considered “express and informed consent,” Florida law requires each patient entering treatment or their legal guardian to be given the following information:

  • The reason for treatment or admission
  • The proposed treatment and its purpose
  • Common risks, benefits, and side effects of the proposed treatment
  • Alternative treatment options and their risks, benefits, and side effects
  • The specific dosage range for any medications being suggested
  • The approximate length of care
  • The potential effects of ceasing treatment
  • How the proposed treatment will be monitored
  • That any consent can be revoked before the treatment period 

Express consent is necessary before giving a patient a general anesthetic or electroconvulsive treatment.

Implied consent is not directly stated. Instead, it is usually inferred by the circumstances, such as a patient extending their arm when the nurse goes to draw blood or by seeking care from an emergency room.

There are some times when a healthcare provider may be able to assume legal consent, such as:

  • A surgeon determines another procedure is necessary to ensure that the intended surgery is a success in the middle of the procedure
  • The patient’s attending physician authorizes emergency medical treatment they deem life-saving
  • A minor is seeking outpatient crisis intervention services as defined under Florida law

Our personal injury lawyers can evaluate your claim and explain what type of consent was required.

Why Does It Matter?

Receiving medical treatment does not come without risk. According to a Johns Hopkins study, medical errors are the third leading cause of death in the United States. Doctors are people who make mistakes. However, patients have a right to understand the risks involved in any medical treatment they are considering. With full information, they can make informed decisions about their care. 

Medical malpractice may occur if a doctor does not secure informed consent. 

This can take many forms, such as:

  • Not securing express consent when legally required 
  • Failing to give an adequate explanation of the procedure or associated risks
  • Hastily explaining a proposed course of action so that the patient does not understand the risks or side effects
  • Having patients sign medical waivers without giving them time to review them or ask questions

Generally, to advance a claim for lack of consent, you must prove:

  • The healthcare provider did not obtain your informed consent
  • You were harmed during the medical procedure
  • You were harmed in a way that you would not have agreed to had you been made fully aware of that risk

An experienced medical malpractice lawyer can help you establish these elements. 

If you were harmed during a procedure in which the healthcare provider did not obtain informed consent, you may be able to recover compensation for:

  • Past and future medical expenses
  • Lost wages
  • Reduced earning capacity
  • Physical, mental, and emotional pain, suffering, and anguish
  • Loss of enjoyment of life 
  • Disfigurement or physical impairment

A St. Petersburg, Florida medical malpractice firm can evaluate your claim during a free case review.

Contact the Pinellas County Personal Injury Law Firm Of Perenich, Caulfield, Avril & Noyes Personal Injury Lawyers for Help

For more information, please contact the Clearwater and St. Petersburg personal injury law firm of Perenich, Caulfield, Avril & Noyes Personal Injury Lawyers at the nearest location to schedule a free consultation today.

We serve in Pinellas County and its surrounding areas:

Perenich, Caulfield, Avril & Noyes Personal Injury Lawyers – St. Petersburg
2560 1st Ave S,
St. Petersburg, FL 33712,
United States
(727) 344-4242

Perenich, Caulfield, Avril & Noyes Personal Injury Lawyers – Clearwater
1875 N Belcher Rd. STE 201,
Clearwater, FL 33765,
United States
(727) 796-8282