People often confuse express and implied. Express consent is given clearly and directly, either through written permission or a verbal agreement. Health practitioners need a patient’s permission for many types of medical procedures, especially for invasive procedures, like surgery. Implied consent usually involves signed waivers or a patient’s display of willingness.
As a patient, you have a right to understand the risks involved in your medical treatments, make decisions for yourself, and protect your bodily privacy. Unless there’s an emergency, you can accept or refuse any treatments you wish.
How do You Give Express Consent?
As a patient, you give express consent when you communicate your permission clearly and directly. When you sign medical waivers or similar papers, you give express consent for a particular treatment. You can also give express consent by making a clear verbal statement like, “Yes, I consent to this procedure.”
Written permission is usually required for complex or risky procedures. Procedures that could have social or personal consequences for the patient and treatments given as part of a research program also require express consent.
How does a Doctor Get Implied Consent?
Unlike express consent, a patient’s actions may imply consent. This can complicate the legal process. You might give implied consent by nodding your head, extending your arm to let the nurse take a blood sample, or fasting for 24 hours before a scheduled surgery.
Implied consent can also occur in the middle of surgery if the surgeon needs to conduct an additional procedure to make sure the surgery succeeds. Patients may also sign a waiver permitting doctors to proceed with other necessary treatments.
How does Consent Get Confused?
A doctor may perform a procedure without the patient’s consent. In some cases, the error is more overt, like when a patient consents only to cosmetic surgery on their nose, but the doctor performs surgery on their lips, as well. This patient did not permit the extra procedure, resulting in a physical change they didn’t want.
In other cases, the healthcare provider might fail to give the patient an adequate explanation of the procedure before requesting consent. A patient might misunderstand consent completely.
How Important Is It to Be Informed?
Written express consent may sound like rock-solid protection against medical malpractice claims, but doctors still have certain responsibilities. A patient must fully understand the nature and purpose of any medical examination or procedure. This includes the risks, benefits, and possible side effects.
Without extensive and accurate information, you cannot give informed consent. You may receive written information or leaflets, but your doctor should take the time to discuss the procedure and answer your questions in person.
Aside from serious emergency situations, healthcare providers must also have your written consent for many types of exams and procedures. If you signed a medical waiver without knowing all the facts and the medical procedure harmed you, you might have a basis for a medical malpractice lawsuit.
Doctors Have Other Responsibilities
Along with obtaining express consent, doctors are responsible for treating patients with a standard of care. They have to:
- Properly diagnose your condition
- Consider your medical history and current medications before treating you
- Follow up with you throughout your recovery
- Prescribe appropriate medications in the right dosages
- Provide instructions when they discharge you
If a medical professional commits an error that leads to an injury or worsening condition, you can hold them responsible through a medical malpractice lawsuit.
Potential Compensation in a Medical Malpractice Case
You will likely require additional medical treatment to address any new injuries. You may have to miss work, as well. You can seek compensation for these damages, among others.
You may stand to recover:
- The cost of the original treatment that led to your injuries
- The cost of treatment to address the injuries resulting from medical malpractice
- Lost wages for the time you had to take off work
- Reduced earning capacity if you can’t return to work
- Pain and suffering
- Loss of quality of life
You may also pursue many damages if you lost a loved one to medical malpractice. A settlement may cover their funeral expenses, medical bills, and the income they would have continued to provide. While you recover or honor your loved one’s memory, we can handle the legal process.
We Can Take Your Case on a Contingency-Fee Basis
You do not have to worry about how you will pay for legal services. Our team can begin working on your case at no upfront cost. We only take our payment from a potential settlement or verdict we win on your behalf.
Work with Our Medical Malpractice Attorneys Today
Call the Law Office of Cohen & Jaffe, LLP to discuss your situation and see how our medical malpractice attorneys can help. Our implied consent lawyers can explain the difference between implied and express consent in more detail and determine your legal options.
We are committed to defending your rights as a patient and holding healthcare practitioners accountable. For your free consultation, reach out to us by calling (516) 358-6900.
