What is Implied Consent in Healthcare?

Healthcare procedures can have a huge impact on a patient’s quality of life, so it’s essential that you consent to procedures before undergoing them. There are two main types of consent in healthcare: express consent (also known as informed consent), and implied consent.

Express consent must be obtained when a patient is undergoing a procedure that is invasive or otherwise risky, such as a surgery, cancer treatment, or clinical trial for a medication. Express consent is most commonly given in writing. By signing a document, the patient (or legal guardian) “expressly” acknowledges the risks associated with the procedure or treatment.

But what happens if you’re unable to give express consent to treatment or a procedure but still need it? That scenario might be covered by implied consent. In this blog, we’ll answer common questions about implied consent in healthcare, and tell you what you need to know if you are injured in an “implied consent” scenario.

What Is Implied Consent?

Implied consent is assumed to have been given under two general circumstances:

  • When a patient’s actions indicate their consent: If you schedule a vaccination and arrive at the clinic for it, your actions imply that you have consented to the vaccination.
  • When a patient is in need of critical medical care, but is unable to consent: If you receive life-threatening injuries in a car crash, or suffer complications while under anesthesia for a surgery, it’s assumed that you would consent to life-saving treatments, so medical professionals are typically protected by implied consent.

Note that if you show up for a regular checkup and your physician determines that you need a procedure performed, your express consent would almost certainly be required before any action can be taken. This is because your implied consent only applies to the checkup, not subsequent medical procedures.

When and where implied consent applies can prove challenging in some situations. For example, if a child arrives in an emergency department but isn’t accompanied by an adult who can legally give consent, the hospital must determine whether the (technically) unauthorized treatment of the child is justified by the potential consequences of not rendering any care at all. 

Can You Revoke Your Consent?

In short, yes. As a patient you always have the right to change your mind about any procedure before it begins, and you can even revoke your consent after certain treatments have already begun. You can also limit your consent. For example, if you initially give informed consent authorizations for two cancer therapies, but decide that you don’t want to undergo one of them, you can revise or limit your consent to forgo the second treatment.

Depending on the type of procedure for which you are revoking your consent, you will likely be required to sign a document indicating that you understand the risks of forgoing the procedure.

What Are Your Rights if You’re Injured Due to Implied Consent?

When medical professionals take action based on implied consent, they benefit from strong legal protections. Regardless of the patient’s eventual outcome, if it’s assumed the patient would have consented to the procedure, the medical professional typically won’t be held liable. Patients can, however, recover damages resulting from injuries sustained under implied consent if the healthcare professional was negligent. 

You can recover damages for your injuries even if you gave express consent. This is because your express consent for a particular medical procedure is not the same as consenting to negligence (which no one would ever do). A patient may consent to an operation with an understanding of the known risks, but the medical professional’s negligence is not a known risk to which they can consent. To be clear, a medical professional’s negligence is never protected by your express or implied consent to a procedure. 

If you think a medical professional might have been negligent when caring for you, contact Brian Lewis at the Lewis Law Firm to discuss your case.

How a Personal Injury Attorney Can Help Your Healthcare Consent Case

When you’re recovering from injuries or dealing with the loss of a loved one due to medical malpractice or negligence, navigating two of the most complex systems in the country—the legal system and the healthcare system—is the last thing you deserve. 

Fortunately, you can rely on an experienced personal injury lawyer like Brian Lewis to advocate for you. He’ll navigate the legal system, consult with medical experts to gather evidence, and prepare your case so you can focus on recovering.

Even if you can prove negligence, the defendant may downplay the impacts of the damages you suffered and only offer you a fraction of what you deserve. Fortunately, Brian Lewis has more than twenty-five years of experience when it comes to negotiating damages and valuing cases. This is essential for recovering the money you lost to things like:

  • Medical costs incurred as a result of the negligence
  • Lost wages while recovering
  • A loss of future income due to a permanent disability resulting from your injuries

It’s equally important to account for the intangible ways your life has been altered through pain and suffering due to your injuries: 

  • Loss of normal life
  • Grief
  • Emotional distress caused by your injuries

If you or a loved one have suffered due to negligence or medical malpractice, contact the Lewis Law Firm to discuss your case today. 

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