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What Is the Difference Between Express and Implied Consent?

Posted on February 8, 2024 in

Consent is an important issue in certain kinds of personal injury cases, such as many based on medical malpractice. In Oregon, failure to obtain informed consent can constitute medical malpractice even if the procedure was otherwise medically justified. 

Two forms of consent are relevant: express consent and implied consent. Either form can be used to defend a doctor against a “lack of consent” claim. 

Express consent is consent that you give explicitly, in so many words. These words can be verbal or (preferably) written into a document that the patient signs.

Following are some common examples of express consent:

  • Signing a consent form. This is the most common form of express consent, because a consent form is convincing evidence.
  • Verbal consent. Doctors rely on verbal consent only for relatively minor procedures.
  • Written consent for clinical trials.
  • Vicarious written consent for childhood vaccinations (typically provided by a parent).
  • Verbal agreement to a general treatment plan.

These are not the only kinds of express consent, but they do cover most situations.

Informed consent is express consent to a medical procedure that a patient might offer after the health care provider fully informs them of the risks involved. In Oregon, failing to secure informed consent can constitute medical malpractice.  

Even if you give consent, however, it is meaningless unless the doctor informed you of the risks of the procedure before you offered your consent.

A complete and effective consent form should include:

  • The doctor’s diagnosis;
  • A complete description of the proposed treatment;
  • A description of the treatment’s benefits, risks, and potential side effects; and
  • The reason why the doctor believes the treatment is your best option.

Your signature on the consent form asserts that you understand the contents of the consent form and you agree to the proposed treatment.

Implied consent is consent that the patient offers by some means other than express written or verbal consent. “Implied” means the doctor infers consent from the patient’s actions, not their words.

Following is an incomplete list containing some common examples of implied consent.

  • Emergency situations: If you lose consciousness but require immediate medical attention, your doctors have implied consent to perform life-saving treatment.
  • Routine physical examinations: If you show up for a general check-up, your doctor can assume your consent for basic procedures like blood pressure measurement, temperature check, and heart rate monitoring.
  • Non-verbal affirmation: Nodding or gesturing in response to a doctor’s proposal to perform a simple procedure, like taking blood, constitutes implied consent.
  • Follow-up procedures: Returning for a follow-up appointment implies consent for the continuation or completion of partially completed medical treatment.
  • Preparatory actions: Removing clothing or positioning oneself as instructed by a healthcare provider for a medical procedure.
  • Bringing a child to a pediatrician for scheduled vaccinations implies consent for those shots.
  • Refilling prescriptions: Requesting a refill of a regular medication implies consent to continue that medication.
  • Entering an examination room and preparing for an exam implies consent to the exam.
  • Compliance with a doctor’s order of routine tests like X-rays or blood tests during an appointment.
  • Remaining in a hospital bed for monitoring or recovery implies consent for routine checks by nurses and doctors.
  • Using crutches, braces, or other medical devices provided during a consultation implies consent for their use.

It’s sometimes a judgment call whether a certain action implies consent. Lawyers can argue over whether it was reasonable for your doctor to imply your consent to a procedure.

Talk to a Lawyer if You Think You Have a Medical Malpractice Claim

Although medical malpractice claims can be difficult to win, people win them every day. Naturally, you might not be sure whether you have a viable claim. Of course, the best way to find out is to schedule a free initial consultation with an experienced medical malpractice lawyer.

Contact Our Personal Injury Attorneys in Portland, OR – Tillmann Car Accident & Personal Injury Lawyer

If you were injured in an accident in Portland, OR, please contact our Portland personal injury lawyers at Tillmann Car Accident & Personal Injury Lawyer to schedule a free consultation today.

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101 SW Main St. #1905
Portland, OR, 97204
(503) 773-3333

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