Anderson Injury Lawyers | April 27, 2023 | Medical Malpractice
It is common to confuse express and implied consent, especially when discussing a medical provider’s requirement to obtain informed consent from a patient. However, important differences distinguish express consent from implied consent. The difference could impact your Fort Worth medical malpractice claim.
Elements Necessary To Provide Informed Consent
Consent is your willful and voluntary agreement to another person’s suggestion or proposal. A medical patient might agree to something through express or implied consent, for instance.
As a patient, you have the right to be informed and understand any medical procedure or treatment you receive. Therefore, medical providers must obtain informed consent to perform most procedures.
Information you should receive for informed consent includes:
- The doctor’s diagnosis of your condition, including a clear explanation of the health condition or illness the doctor intends to treat
- A description of the proposed procedure, treatment, or medication the doctor recommends
- Information about how the procedure or treatment is performed during every phase
- An informative discussion about the benefits and risks of the proposed procedure or treatment
- An explanation of the potential outcome if you decide not to have the treatment or procedure versus the expected outcome if you decide to go forward with treatment
- A discussion of any alternative forms of treatment, if any exist
- An explanation from the doctor about why they recommend this specific procedure or treatment
Failing to obtain consent for a medical procedure or treatment could be the grounds for a medical malpractice claim. A Fort Worth medical malpractice lawyer will review your case during a free consultation and advise you of your legal options.
How Do You Give Express Consent in Texas?
Express consent is communicated directly to the medical provider. It is clear and direct consent to a procedure or treatment.
Typically, express consent is given by signing a waiver or other document. However, you could also verbally consent by stating, “I consent to this treatment or procedure.”
Doctors, hospitals, and other medical providers generally perform consent in writing. It is much more difficult to challenge consent if you signed a document stating you consented to medical care. Furthermore, certain types of medical treatment and procedures might require written consent.
How Do You Give Implied Consent in Texas?
Implied consent is given by your actions instead of a statement. For example, you could give implied consent by nodding your head. You could also give implied consent by holding your arm out for a shot or drawing blood.
Implied consent can also be assumed in certain situations. For example, during surgery, it is assumed that you would want the doctor to perform any procedures necessary to save your life and prevent harm, even though you cannot communicate your consent in writing or verbally.
Likewise, it is presumed a person consents to medical treatment in an emergency, such as being unconscious. If the person does not decline emergency medical treatment, implied consent usually applies.
Consent Is Not a Waiver of Liability for Medical Professionals
Providing consent for medical treatment, surgery, or other medical procedure does not release a doctor or medical provider from liability for negligence or other wrongdoing. Even though you gave express consent, your doctor still must meet the standard of care.
For instance, let’s assume you consented to surgery. The doctor still has a duty of care to:
- Monitor you for complications and infections
- Review and consider your medical history
- Provide follow-up care after surgery
- Perform the surgery according to the accepted standard of care
- Provide the correct medications and other treatment post-surgery
If your doctor makes mistakes, they could be liable for damages. For example, your doctor leaves a medical instrument inside you during surgery or performs surgery on the wrong body part. You did not consent to these actions, so you could receive compensation for medical malpractice.
What Types of Compensation Could I Receive for a Lack of Consent Medical Malpractice Claim?
- Medical bills associated with the malpractice
- Lost wages and benefits
- Emotional distress and mental anguish
- Disfigurement and scarring
- Out-of-pocket expenses
- A decrease in future earning capacity
- Impairments and disabilities
- Personal care and long-term nursing care
- Loss of enjoyment of life
- Pain and suffering
- Diminished quality of life
Medical malpractice lawsuits are complicated. They require medical experts to testify regarding the accepted standard of care and how your doctor deviated from the standard of care. You also need medical specialists to explain how the breach of duty caused your injuries.
Contact Our Medical Malpractice Law Firm in Texas
If you’ve been injured in an accident in Fort Worth or Dallas and need legal help, contact our medical malpractice lawyers at Anderson Injury Lawyers to schedule a free consultation. We proudly serve Tarrant County, Dallas County, and throughout Texas.