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Understanding the Difference Between Express and Implied Consent

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Health practitioners need the patient’s permission for many types of medical procedures, especially when it comes to invasive procedures like surgery. 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. Here’s the tricky part: your consent may come in different forms, and in the context of a malpractice claim, it can sometimes be difficult to establish whether you really gave consent to a procedure. To fully understand this dilemma, it’s important to distinguish between express and implied consent.

How does consent get confused?

It may seem unbelievable to think that a doctor would perform a procedure without the patient’s consent, but the mistake can be made in a few different scenarios. 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 clearly did not give permission for 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 informative explanation of the procedure before requesting consent—or they might misunderstand consent completely.

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, examinations that aren’t primarily meant to give clinical care, procedures that could have social or personal consequences for the patient, and treatments given as part of a research program.

How does a doctor get implied consent?

Unlike express consent, implied consent is often relayed through your actions. As such, it’s more difficult to prove in a legal context. You might give implied consent by nodding your head, by rolling up your sleeve to let the nurse take a blood sample, or by fasting for 24 hours before a scheduled surgery. Implied consent can also take place in the middle of surgery—that is, if the surgeon does an additional procedure to make sure the surgery succeeds. It’s also possible to sign a waiver giving permission to do any other necessary procedures that may not have been known in advance.

How important is it to be informed?

Written express consent may sound like rock-solid protection against malpractice claims, but if it’s going to hold up in court, it requires another important factor: information. A patient must fully understand the nature and the purpose of any medical examination or procedure, including 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.

Aside from serious emergency situations where it’s impossible to get your consent or your condition is life-threatening, 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 you were harmed as a result, you may have a basis for a medical malpractice lawsuit.

Contact a Long Island Medical Malpractice Attorney Today

Call the Law Office of Cohen & Jaffe to discuss your situation with a knowledgeable attorney. We are committed to defending your rights as a patient and holding healthcare practitioners accountable. Contact us for a free consultation or call us at 866-878-6774.

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