What is the Difference Between Express and Implied Consent?

When a medical provider’s negligence harms you, you are entitled to compensation for your medical bills and other losses. You can recover these damages through a medical malpractice claim or lawsuit. However, medical malpractice cases are often complex.

In California, patients must be able to give “informed” consent for procedures and treatments. This means they must be made fully aware of the risks and complications of treatment. Consent can take two forms: express consent and implied consent. 

The following overview will help you better understand this nuanced topic.

What is Express Consent? 

Many medical treatments are naturally risky. Accordingly, It’s important that doctors and other health care providers obtain the consent of their patients before performing procedures or offering treatment.

Consent can come in a variety of forms. Express consent involves a patient consenting to treatment, usually in the form of writing. A patient may consent by their signature on a document. A patient can also give express consent verbally in some cases. 

What is Implied Consent?

Implied consent is more vague. A doctor or medical provider might imply consent to surgery or treatment based on your behavior. Implied consent means that a reasonable person would have interpreted a patient’s actions as indicating consent. Implied consent typically doesn’t involve any verbal or written statements.

For example, perhaps your doctor is preparing to give you a shot. You’re both aware you’re there to receive the shot. The shot may be the main reason for your appointment, or it may be a standard element of a procedure.

As your doctor approaches you to give you the shot, you roll up your shirt sleeve. You may not have given your express consent to the shot, but a reasonable person would have interpreted your actions as an acknowledgment of consent.

Implied consent can involve other non-verbal gestures as well, such as nodding one’s head. It can also involve actions that indicate a patient was preparing to receive treatment.

How Express and Implied Consent Affect Medical Malpractice Cases in California

When you file a medical malpractice claim or lawsuit in California, a negligent health care provider and/or their insurer may challenge your claim. They may argue that you gave implied consent to a procedure or treatment. This could prevent you from recovering all of your damages.

Proving implied consent can be challenging. However, proving that you did not give implied consent can also be difficult. Both sides must present strong arguments in medical malpractice.

An attorney can strengthen your medical malpractice claim and help you recover the damages you deserve after an accident. They can assist you in documenting your economic damages such as medical expenses and lost wages related to the accident. They can also help you record your non-economic damages, such as pain and suffering.

Medical malpractice claims often require expert testimony. Your personal injury attorney can consult with medical experts to prove your medical provider committed medical malpractice. Therefore, if you’ve been injured by medical malpractice, you should contact a personal injury attorney to protect your rights.