When Do Implied and Express Consent Failures Constitute Medical Malpractice?

Victims of slip and fall accidents, motor vehicle crashes, and product defects often require medical treatments. Even Tennessee residents who don’t have accidents may need medical treatment for their diseases and medical conditions. These victims and patients aren’t doctors. They rely on their healthcare providers to inform them about their medical condition, the possible treatments, and the risks of the various procedures and treatments. Patients need to understand the benefits and risks of their healthcare.

What is express consent for medical care?

Express consent is also called informed consent. The most common form of express consent is a written authorization by the patient for the healthcare provider to provide specific types of medical treatment. Generally, doctors are required to give the patient enough information so the patient can make a knowledgeable decision about their care. Patients need to understand:

• Their diagnosis
• The procedure or treatment the doctor or other healthcare provider such as a medical technician wants to perform.
• The benefits of the procedure or treatment.
• The possible risks of the procedure or treatment including possible side effects.
• The possible risks if the patient decides not to go through with the procedure or treatment.
• A discussion of the possible alternative treatments.
• An explanation of why the doctor believes the procedure or treatment is best for the patient.

Express/informed consent is generally required for surgeries, the use of anesthesia, vaccinations, biopsies, diagnostic tests, and blood transfusions.

If a doctor is required to obtain express consent and performs the procedure or treatment without that consent, the doctor may be liable for medical malpractice – even if the procedure or treatment is successful.

What is implied consent for medical care?

Whether implied consent is required depends on the circumstances. Sometimes a patient’s consent can be inferred. Sometimes it may not be possible or timely for the patient to give express consent. An example of implied consent is when a patient goes to a lab for an X-Ray, CT scan, or MRI. It may be inferred by showing up to the lab and submitting to the tests implies that you gave your consent to the diagnostic test.

Implied consent is often an issue in medical emergencies such as when a car accident occurs, a victim suffers broken bones or head trauma, or a victim suffers burn injuries. If the victim is not conscious or is not able to give consent, then medical care providers generally can assume that the victim would want to have procedures and treatments done to keep them alive – that they would have given express consent if they were able to communicate.

Consent may also be implied if a victim is drunk, under the influence of drugs, has a mental disability, or the patient cannot speak the language that the healthcare provider speaks.

How does an accident victim or patient give consent?

Express consent can take many forms. Examples of express consent include:

• Signing a written informed consent document. This is normally achieved by signing a medical authorization form detailing all the information the patient needs to make an informed decision about their healthcare.
• Verbally giving consent. This type of consent is valid. Questions about whether verbal consent was actually given may arise. Whether verbal consent was given will likely depend on the patient’s word versus the healthcare provider’s word.

Written consent is more reliable than verbal consent. A written medical authorization generally protects physicians, if a patient files a medical malpractice claim, better than an implied consent.

Can victims and patients change their minds about consenting to care?

Anyone who signs an informed consent form or gives their consent verbally has the right to change their mind before the surgery, procedure, or treatment. Informed consent is not a formal contract. Patients often rethink the type of care they want or are willing to risk after they get a second opinion, talk to family and friends, or do their own research.

Victims and patients can give partial consent. For example, burn injury victims may agree to have skin grafts to help repair the burns but may not give their consent to have any plastic surgery until after they see what the skin graft repair looks like.

Doctors should explain the risks of not going through with the procedure and the risks of partial consent instead of full consent. If a victim or patient chooses to change their mind or give partial consent, the physician or healthcare provider should have the patient sign a new consent form if more medical treatments are suggested.

Other consent issues may arise for older patients. Many seniors grant a relative or friend a medical power of attorney to make decisions about informed consent for them – if the senior cannot physically or mentally give their own consent. There are additional legal documents and laws that govern end-of-life care. Doctors who fail to honor medical powers of attorney and end-of-life documents may be liable for medical malpractice.

At Bailey & Greer, PLLC, our Memphis medical malpractice lawyers have been fighting for medical negligence victims for 35 years. We understand what conduct qualifies as medical malpractice. We work with independent doctors to help confirm that a healthcare provider committed medical mistakes. We demand compensation for the pain and suffering, medical bills, and lost income medical malpractice, including a failure to obtain an informed consent, causes.

To learn about medical malpractice claims, call us at 901-475-7434 or complete our contact form to make an appointment at our Memphis or Jackson office. We handle medical malpractice cases on a contingency fee basis. We meet patients in their homes or healthcare facilities if necessary, and serve clients throughout West Tennessee.