What is the Difference Between Express and Implied Consent?

Paul Brannon | May 6, 2022 | Personal Injury

You give your consent when you voluntarily agree to do something or allow something to be done to you. Consent is an important legal element in many cases, including medical malpractice, contract law, and sexual assault. Consent may be either implied or express.

Implied consent refers to your agreement to do something or allow something to be done to you based on your actions. For example, you go to the dentist for a cleaning. You give your implied consent for the cleaning by sitting in the chair and opening your mouth for the dentist to clean your teeth.

On the other hand, express consent is a verbal or written agreement. For example, you sign a consent form to allow a doctor to perform surgery. You may sign a consent form before undergoing an MRI or a CT scan.

In medical malpractice claims, consent can be an essential element in proving malpractice. 

Informed consent is a higher level of consent. It indicates that you have been given adequate information to decide whether to proceed with a specific activity or procedure. Patients have the right to have all relevant information before making health care decisions.

Doctors have a duty to provide information for patients to give their informed consent for treatment. The information a doctor should provide to a patient includes:

  • An explanation of the illness or medical condition to be treated
  • The name and description of the treatment or procedure the doctor recommends
  • A discussion of how the procedure or treatment can benefit the patient and treat the illness or condition
  • An explanation of how the procedure or treatment is performed
  • The potential risks and benefits of the proposed treatment or procedure
  • What could happen if the patient refuses to have the procedure or treatment
  • Whether there are any alternatives available 
  • A discussion of why the doctor chose this procedure or treatment instead of one of the alternatives

Patients should ask questions about treatments and procedures. Doctors have a duty to take as long as necessary to answer questions so that a patient has all the information necessary to make an informed decision. Only after receiving all relevant information can a patient provide informed consent for a medical procedure or treatment plan. 

Because medical providers can be sued if they fail to obtain informed consent and a patient sustains harm, most doctors and medical professionals require patients to sign a consent to treatment form. The form ensures the patient understands the potential risks involved in the procedure or treatment and chooses to move forward.

However, there are exceptions where a doctor may act on implied consent in some cases. For example, suppose a patient is unconscious and needs life-saving treatment. In that case, it is presumed the patient would want the doctor to do whatever is necessary to save their lives and protect their health unless the patient has a DNR (do not resuscitate) order on record. 

Another example would be complications during surgery or other treatments when the patient gave their express consent. If something were to go wrong, it is presumed the patient would want the doctor to take steps to avoid life-threatening conditions or permanent impairments. 

A health care professional may rely on implied consent when the treatment or procedure is minimally invasive and has low risk. Examples would be taking an x-ray, drawing blood, or giving a person a shot. The person’s physical conduct in submitting to the procedure could be sufficient to imply consent. 

Even though you give express or implied consent to a medical procedure or treatment plan, it does not mean you give up your right to sue a doctor or medical provider for malpractice. Consent does not excuse negligence and intentional wrongdoing.

To prove medical malpractice, you must provide evidence proving by a preponderance of the evidence that:

  • You had a doctor-patient relationship with the medical provider
  • The medical provider owed you a duty of care
  • The person breached the duty of care by failing to meet or exceed the accepted level of care for a specific situation 
  • The breach of duty was the direct and proximate cause of your injury
  • You sustained damages because of the breach of duty

Proving a medical malpractice claim in Florida can be challenging. You must have medical experts testify that your physician failed to meet the standard of care and that failure caused your injury. Because there are deadlines for filing medical malpractice claims, it is best to seek legal advice from a medical malpractice lawyer as soon as possible.

Contact Our Personal Injury Law Firm in Northwest Florida

If you need legal assistance, contact the Fort Walton Beach personal injury lawyers at Brannon & Brannon Car Accident & Personal Injury Lawyers at your nearest location to schedule a free consultation today.

We have two convenient locations in Northwest Florida:

Brannon & Brannon Car Accident & Personal Injury Lawyers – Fort Walton Beach Office
975 Mar Walt Dr
Fort Walton Beach, FL 32547
(850) 863-5297

Brannon & Brannon Car Accident & Personal Injury Lawyers – Destin Office
4507 Furling Ln Suite 214
Destin, FL 32541
(850) 790-0243