If a doctor provides substandard care or negligently gives a wrong diagnosis, these could be instances of medical malpractice. Another type of malpractice is to conduct treatment on a patient without their permission, or without their consent. Keep reading to learn more about express and implied consent and how they could figure into a medical malpractice lawsuit.

Express Consent to Medical Treatment

This is unambiguous consent, often in the form of written consent that a patient gives before receiving certain treatment. Before undergoing surgery, for example, a patient must give this express consent. But express consent is not always going to be informed consent as well. That is why so much information has to be given to a patient, so that their consent can be both clear and informed. In the example of surgery, you could be handed a few pages that detail what happens in the surgery and that give a list of some of the health risks you could be running. You might also be told how the surgeon will have to respond if there are any snags during the operation. The doctor follows up, tells you more, replies to your questions, etc. Then you have to sign the form before the surgery could take place.

When can express consent come up in a medical malpractice case? Sometimes, a lack of express consent can become a legal issue in cases when a surgery was done on the wrong part of the patient's body. It could also be an issue when a second, non-urgent surgery was performed when only the first operation was expressly consented to. A doctor could be liable if the patient was not informed about a known risk, or if the risk was misrepresented. (Of course, not every single possible risk could be given on the consent form; only the significant risks.) A risk could be misrepresented if the doctor gives a disclosure that conflicts with the consent form, or if, for example, the consent form states that there is only a 5% risk of a certain complication when there is in fact a 15% risk, enough of a difference for a patient to say that they would never have given express consent had they known. If they are injured from this undisclosed or misrepresented risk, they may have a malpractice claim on their hands.

Implied Consent to Medical Treatment

This is not consent that is explicitly given. This could be going to the doctor for a flu shot, for instance. For medical treatment that is not a surgery, if you arrive for treatment, you can be assumed to have given your consent. Then in the emergency room, an unconscious and unaccompanied patient is presumed to give consent to urgent treatment, even to surgery.

Of course, any matter of medical malpractice will be a complex issue, and consent is certainly a difficult matter to sort through. If you think you might have a medical malpractice case, find out when you contact a medical malpractice attorney from our directory today! Act now before your case expires.