Implied vs. expressed consent: What’s the difference?

The difference between express and implied consent is this: patients express consent for treatment through written or sometimes verbal communication. They give implied consent through an action or gesture.

The implied consent vs. expressed consent issue is a factor in medical malpractice cases, as is “informed consent.” If you have been harmed by an intervention you did not consent to, contact Smith Jordan Law. A Greenville medical malpractice lawyer from our team will review your case for free and advise you on the best way forward.

 implied vs expressed consent

What are examples of informed vs. express vs. implied consent?

Most medical professionals understand informed and express consent as having the same meaning. A patient receives information from the provider about the procedure or treatment required and expressly–clearly and definitively–agrees to that treatment, usually in writing.

Informed consent, as defined by the National Library of Medicine (NLM), “is the process in which a health care provider educates a patient about the risks, benefits, and alternatives of a given procedure or intervention. The patient must be competent to decide whether to undergo the procedure or intervention.”

The medical definition of “implied consent,” according to the Journal of Family Medicine and Primary Care, is “when a patient passively cooperates in a process without discussion or formal consent.”

For example, if you go for your yearly physical, and your doctor asks if you want a flu shot, you might roll up your sleeve to indicate consent even without saying “yes.” Other examples are more extreme. If you enter an emergency and pass out, entry implies consent for treatment, despite your lack of consciousness or verbal consent.

What is an example of a lack of informed consent?

Sometimes, patients sustain injury, severe side effects, or other harm from a medical intervention. If not warned of these potential outcomes, they may hold the medical provider accountable for this medical malpractice through a lack of informed consent lawsuit.

For example, a doctor performs surgery on a patient but does not tell the patient about the potential risks involved, such as paralysis. The patient awakens to learn–unexpectedly–that they can no longer move a part of their body. The patient may have opted out of surgery had they known this risk, and in this case, may be able to sue for medical malpractice on the grounds of lack of informed consent.

Implied vs. expressed consent: Is one easier to prove?

Both implied and express consent cases have challenges, so having a skilled Greenville medical malpractice lawyer fighting for you is critical. Express consent usually involves a written agreement. However, if your medical provider had you sign your consent without discussing the terms of the procedure and its risks, you did not give “informed consent,” and your lawyer will work to prove that.

Since there is no written agreement to consult in implied consent cases, proving them can be challenging. In emergencies, doctors can claim they have no choice but to act without express consent. Still, that does not mean you should not pursue an implied consent case. Sometimes, doctors misread a situation or your actions. In medical situations, this type of carelessness comes with serious consequences. Smith Jordan Law will work to hold doctors accountable for the damage their carelessness caused you.

Unsure how to proceed? Ask us.

While most medical professionals act with great care, others fail to do their diligence in informing patients of the risk factors that come with treatments. You may be entitled to compensation if a medical intervention has caused you unexpected harm. Call Smith Jordan Law at (864) 343-2222 or send us a message about your situation. We are ready to help you get the answers you need.

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