| Read Time: 3 minutes | Medical Malpractice
difference between expressed and implied consent

In the world of health care, consent plays an important role. There are two main types of consent—express and implied.

Implied consent deals with situations involving inferred permission, while express consent involves overt permission. Consent is an integral component of medical treatment and procedures.

It helps validate the patient-healthcare provider relationship and reinforces respect for individual autonomy and the decision-making rights of patients.

The topic of consent becomes extremely important during medical malpractice claim investigations.

Read on to learn more about each type and the difference between express and implied consent in New Mexico. If you have questions, please contact our New Mexico medical malpractice lawyers today.

What Is Implied Consent?

Implied consent occurs when consent is not explicitly given but inferred from actions or circumstances. This typically happens in situations where direct communication with the person is impossible, often because they are unconscious or otherwise unable to respond.

Implied consent to medical treatment typically arises in situations where a minor requires urgent medical attention, and their parent or legal guardian is unavailable to provide consent. This often occurs in cases of life-threatening injuries, where immediate medical intervention is necessary to preserve the child’s health and well-being. In such instances, healthcare providers may proceed with treatment based on the assumption of implied consent, prioritizing the child’s welfare in the absence of explicit authorization from a parent or guardian.

Implied consent is understood from a specific situation’s context, actions, or facts and circumstances. Implied consent happens all the time in a medical setting, especially when visiting a doctor’s office.

When a patient visits a doctor for a general checkup and sits down for the exam, it’s a form of implied consent.

When you show up for a flu shot and begin rolling up your sleeve or go to the lab for blood work, it’s implied consent. 

The principle behind implied consent is that a patient’s cooperation with basic health assessment and non-invasive procedures indicates their agreement.

Implied consent usually applies in situations involving minor medical interventions like routine physical examinations, measurement of vital signs, or basic diagnostic tests.

However, it’s crucial to understand that implied consent doesn’t apply universally to medical procedures.

The gravity of the procedure and its associated risks can necessitate a more formal and explicit form of consent, referred to as express consent.

What Is Express Consent?

Express consent is an explicit and voluntary agreement to a specific medical intervention. It can be verbal or written, with the latter typically required for significant procedures like surgeries or experimental treatment protocols.

The process of obtaining express consent involves the health care provider explaining the proposed medical intervention in detail, including the nature, purpose, potential benefits, potential risks, and available alternatives.

After understanding these aspects, the patient either verbally agrees to the proposed intervention or signs a written consent form.

Consent ensures patients make well-informed decisions. Express consent can help protect medical providers against false allegations of medical malpractice.

The Difference Between Express and Implied Consent

The most significant difference between express and implied consent rests in the level of patient understanding and involvement in the decision-making process.

Express consent, conversely, involves a direct, clear line of communication between the health care provider and the patient.

Securing express consent also ensures that the patient has had ample opportunity to ask questions, contemplate the implications, and then decide with complete knowledge.

Express and implied consent are both fundamental in health care. They reflect a patient’s right to autonomy, dignity, and active participation in health decisions.

Contact a New Mexico Medical Malpractice Lawyer

Do you have questions about what implied consent is or suspect you’re the victim of medical malpractice? If so, please get in touch with the experienced legal team at Poulos & Coates.

We are one of only two firms in the state with a lawyer who is also a licensed medical doctor working on every case. Our firm also has a nurse on staff who can assist with your case.

With over 70 years of combined legal experience, we have the skills and knowledge to represent you in any medical malpractice claim.

Contact us to schedule an initial consultation with our office to learn how we can help.

Author Photo

Victor Poulos

Vic Poulos & Greig Coates became law partners in April of 2002, when the two medical malpractice litigators merged their offices, combining what is now over seventy years of litigation experience, to form Poulos & Coates, LLP. Licensed to practice before all State Courts of Texas, New Mexico, Iowa, and Kansas. Licensed to practice before the United States District Courts of Kansas, Iowa, New Mexico, and Texas (Western, Eastern, Southern, and Northern Districts of Texas), as well as the United States Court of Appeals for the Fifth Circuit and the U.X. Ax Court.

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