Consent in the medical world is tricky. Healthcare providers need your informed consent in order to provide you with treatment, but it isn’t always possible for them to provide patients with this, such as in the cases of emergencies when a patient is unconscious or dying.
Since many medical malpractice cases hinge on the issue of consent, it can be challenging for you as a patient to know whether or not a healthcare provider was within their jurisdiction to conduct the treatment they did or whether you have a medical malpractice case on your hands. This is especially true with medical cases, as some may not realize that not liking a treatment or a treatment not working doesn’t mean they’ve been a victim of medical malpractice.
This is where express and implied consent come into play. Here is what you need to know about why consent is so important for medical treatment, what express consent is, what implied consent is, and how you prove a lack of consent in medical malpractice cases.
The Importance Of Consent For Medical Treatment
The American Medical Association considers informed consent part of a doctor’s ethical duty. This is because failure to receive informed consent is stripping control of the patient’s body and what happens to it from the patient.
Healthcare providers take consent seriously, as they know failure to obtain consent for medical treatment opens the door for medical malpractice cases. Informed consent is necessary in order to prevent medical malpractice. If you don’t know what you’re getting yourself into because your medical provider did not provide enough information, then you cannot give informed consent.
Some of the typical information that you should know in order to give your consent include:
- Your diagnosis
- The proposed treatment plan or procedure
- Thorough descriptions of treatment plans and procedures
- The benefits, potential side effects, and potential risks of the treatment or procedure
- The potential consequences of not receiving the treatment or procedure
- Your alternative options, if there are any
- A description of why the healthcare provider believes this treatment or procedure is your best option
As mentioned above, healthcare providers can’t always get express consent from their patients. This is why there are two types of consent for medical treatment: express and implied.
What Is Express Consent?
Express consent is when a patient expressly agrees to the treatment. This can be done verbally or in writing. For example, saying “yes”, “okay”, “I’m ready”, and signing a consent form are all ways of giving express consent.
Doctors typically explain treatments and procedures in full so that you know exactly what to expect, and so that you can decide whether or not to give your express consent for treatment. This is the ideal time to ask any questions to ensure that you have all the information you need to make an informed decision as to whether or not their recommendations are something you consent to.
Just as you need to express your consent for a procedure, you should also state if you do not consent, so that your actions are not interpreted as implied consent.
What Is Implied Consent?
Implied consent, on the other hand, is when the healthcare provider must interpret the patient’s actions under the circumstances in order to determine whether or not consent is reasonably given.
Implied consent can occur when the doctor infers it from the patient’s actions, such as from nodding, scheduling an appointment and then showing up for the appointment, following the doctor’s instructions, and the like. For example, if you schedule an appointment to get your flu shot, it’s implied that you’re consenting to get a flu shot. If you schedule lab work and show up at the lab, it’s implied that you’re consenting to it.
However, if during a routine physical exam, your doctor notices an issue or thinks an invasive procedure or a course of treatment that wasn’t planned may be necessary, consent is not implied for this. In such circumstances, your healthcare provider would need your express consent.
Implied consent can also occur in cases of emergencies, where a doctor can reasonably assume that the patient would consent to life-saving measures. If someone was in an accident or was attacked and is now unconscious or is otherwise unable to communicate, then healthcare providers can assume that the person would want their help if they were conscious or otherwise able to communicate.
For example, if someone was unconscious after an accident or attack and needed surgery to save their life, consent is implied for such a procedure.
Consent can also be implied if people are very young, very old, there is a language barrier, they are suffering from a debilitating mental illness, they are incapacitated due to substance use, and other such instances.
Can Consent For Medical Treatment Be Withdrawn?
Just because you agreed to a treatment doesn’t mean that you are not allowed to change your mind. You can withdraw or limit consent up until the procedure is underway, or decide to only have one procedure, rather than all of the recommended treatments.
You can withdraw or limit consent by talking to your healthcare provider. They would then explain the risks of not going through with the treatment. If you decide that you still do not wish to undergo the treatment, the healthcare provider would then have you sign a document to make that official.
How Do You Prove Lack Of Consent In Malpractice Cases?
Since implied consent exists, it can be challenging to prove that it wasn’t there. With express consent, you usually sign something. If the healthcare provider failed to provide you with enough information to make an informed decision, this falls into the realm of medical malpractice, due to your inability to provide informed consent.
In order to prove a lack of consent, there must be strong evidence supporting your case. A personal injury attorney would be able to help you gather the information that you need in order to support your case. As such, if you want the best shot of proving lack of consent in your medical malpractice case, you will need to hire a personal injury attorney to fight for you.
Do You Have A Medical Malpractice Case?
LeBaron & Jensen is here to help you seek the justice you deserve. If you have a medical malpractice case on your hands, contact us to schedule a consultation. Our personal injury attorneys help victims achieve their rightful compensation.
