What Is the Difference Between Express and Implied Consent?

Ryan Bradley | March 20, 2023 | Medical Malpractice

As a patient, you might hear your doctor or the medical facility use the terms express consent and implied consent. Typically, lengthy forms are given to you to sign before you receive medical treatment or undergo a medical procedure. What do these terms mean, and how do they apply to your medical care?

In short, consent gives a medical provider the authority to treat you. Express consent is given by signing a written statement. Implied consent is communicated through your actions or conduct.

In the medical field, express consent is referred to as informed consent. All patients have the right to make informed decisions about their medical care. Therefore, a doctor or medical provider must give the patient sufficient information to decide how to proceed.

Examples of information a patient must receive to give informed consent for treatment include:

  • A clear description of the patient’s diagnosis (i.e., the illness or health condition the doctor is treating)
  • The proposed treatment or procedure the doctor recommends for the patient
  • A detailed description of how the doctor performs the treatment or procedure, including what is involved in all phases of the treatment
  • A discussion of the benefits of the treatment or procedure
  • A description of the potential risks and side effects associated with the procedure or treatment
  • A discussion of the potential consequences of refusing the treatment or procedure
  • The expected outcome from this procedure or treatment 
  • A description of alternative treatments and procedures, if any exist
  • A discussion of why the doctor recommends this course of treatment instead of alternative treatments

Many treatments and medical procedures require doctors to obtain express consent. The procedures are often invasive or have a high risk of side effects or adverse reactions. If a doctor fails to obtain informed consent, it could be grounds for a medical malpractice claim. 

Most physicians and medical facilities use written forms to obtain express consent. When you sign the medical authorization, you confirm you received sufficient information to provide informed consent. You also consent to the procedure or treatment described in the form.

For example, you sign documents before you have surgery or receive anesthesia. You also sign medical authorizations before an MRI or CT scan. 

Implied consent for medical treatment may be sufficient in some cases. Whether implied consent is adequate depends on the circumstances and facts of the situation.

Instead of providing consent in writing, the patient gives consent through their actions and conduct. A common example of implied consent is entering a lab and putting your arm out to give a blood sample. Another example is appearing for a doctor’s appointment, changing into a hospital gown, and sitting on the table for an examination. 

Implied consent will not apply if the medical provider identifies a condition or issue that requires treatment or procedures not planned or generally necessary when performing the underlying treatment or procedure. For example, suppose your doctor notices a mole during an annual physical. The doctor would need to obtain informed or express consent before removing a portion of the mole to send for analysis. 

Medical emergencies are often an exception to obtaining express or implied consent. 

For example, it is assumed that a person suffering from a life-threatening condition that prevents giving consent would consent to treatment if they could. The same is true if someone is unconscious and needs immediate medical care. The consent is typically implied in situations requiring emergency medical care to prevent further harm or loss of life.

If a patient is intoxicated, implied consent could apply. Also, implied consent could apply to patients with a debilitating mental impairment or too young to understand the situation. 

If a situation requires a doctor to obtain express consent from a patient, the doctor must have verbal or written consent before performing the procedure or treatment. 

However, suppose the doctor did not provide sufficient information for informed consent. Then, the patient suffers harm or injury because of a risk that should have been disclosed to obtain express consent.

The patient sues the doctor for medical malpractice, claiming the doctor breached the duty of care for consent. If a jury finds that the doctor’s failure to obtain informed consent caused the patient’s injury, the patient could receive compensation for damages.

Unfortunately, medical malpractice cases are never this clear. Issues related to consent can be incredibly complicated. 

The best way to know if you have a claim against your doctor is to talk with an experienced St. Louis medical malpractice lawyer. A lawyer can review the facts of your case to determine if you have a claim based on a lack of informed consent. 

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