Implied Consent in a Medical Malpractice Claim

Where You Need a Lawyer:

(This may not be the same place you live)

At No Cost! 

 What is Medical Malpractice?

Medical Malpractice is a legal term that refers to professional negligence or misconduct by a physician, pharmacist, nurse, or other healthcare provider. In the medical community, malpractice is used as a generic term for negligent error made by a professional during treatment of a patient.

Typically, five conditions or elements must be met for medical malpractice:

  1. A relationship exists between doctor and patient;
  2. The doctor had some degree of medical training;
  3. The doctor has an arrangement with the patient (either through agreement, like an insurance plan, or implied by law);
  4. Some injury occurs due to the doctor’s error; and
  5. The injured party was not responsible for the injury.

The term medical malpractice generally does not apply to errors made by non-medical professionals, even if they are employed by a healthcare organization.

In order to pursue a medical malpractice case in court, certain facts must be established. For example, there was some degree of carelessness on the part of the healthcare provider and this carelessness caused injury or damage to the patient.

What Are Some Examples Of Medical Malpractice?

Medical malpractice and their lawsuits may involve issues such as surgery on the wrong body part, leaving medical instruments inside a patient after surgery, and prescribing the wrong drug or dosage of a medication.

Medication errors also occur frequently when lab tests ordered by doctors show incorrect results leading them to prescribe the wrong medication for a patient which can be fatal to their health.

Potential cases may also take into account actions such as failing to diagnose or misdiagnosing an illness, not giving proper follow-up treatment, or surgical errors.

Apart from doctor error, birth injuries can be caused by nurses not paying attention during delivery or improper use of anesthesia leading to injury or death.

Medical malpractice cases are complex because they involve intricate details which must be evaluated in order to determine liability.

The primary aim is not just compensation for medical treatment rendered but also an evaluation of whether there was any wrongdoing by healthcare providers in their decision-making process leading up to the injury which would have been preventable had proper care been taken.

It requires thorough study and analysis by experts who look at what happened during the treatment or procedure leading up to an injury.

What is Informed Consent?

A doctor must gain the patient’s informed consent before giving care. Informed consent is permission by a patient to undergo medical treatment or procedures. Patients should never feel forced into receiving medical help. Before proceeding, doctors need to explain what will happen during the course of the procedure and review any risks associated with it.

Most hospitals require that an adult’s signature be present for any nonemergency surgery. A doctor cannot perform surgery or give medication to a minor without parental or guardian approval, unless there is no other alternative available to save the person’s life. The doctor must contact parents as soon as possible to discuss their child’s health care options, but they cannot proceed until all questions are answered and written permission is given.

In several states, a doctor may perform surgery on a minor without parental consent if it is deemed an emergency and the doctor believes the child’s life is in danger. In such cases, parents are notified as soon as practicable after the surgery has been completed or for minors who cannot speak for themselves, after they have been transferred to another medical facility.

Doctors must offer potential risks of any proposed care before beginning treatment. This information should be written out and signed by both doctor and patient so there is no misunderstanding about what will happen during the course of a procedure or what medications might be taken.

Medical malpractice lawsuits can result from lack of informed consent because some patients blame their doctor when something goes wrong with their health care while others claim they would never have agreed to the doctor’s suggested treatment had they known all of the risks involved.

The doctor has a responsibility to ensure that patients understand medical procedures and can make health care decisions. If there is any confusion, doctors should strive for clear communication.

What Is Implied Consent?

Implied consent is a type of consent that is not expressly given by a patient but is inferred from the circumstances. In the context of a patient-doctor relationship, implied consent usually arises when a doctor performs an action that is within the scope of standard medical practice, and the patient does not object or stop the doctor from continuing.

For example, if a doctor is examining a patient and finds something abnormal, the doctor may order tests or procedures to diagnose the condition. Unless the patient explicitly objects, the doctor can assume that the patient consents to these additional tests and procedures.

Similarly, if a patient comes into the ER with an injury, doctors will typically begin treating them without waiting for explicit consent.

A medical professional should never make a patient feel as though they had no choice but to go through with a medical procedure. By making a patient feel as though they were obligated to receive medical care without getting consent, it could possibly give rise to a medical malpractice lawsuit if anything goes wrong with the procedure.

How Can Implied Consent Affect a Malpractice Claim?

Implied consent describes an agreement made even when no explicit words are used. Implied consent in the context of a medical malpractice case typically applies when a patient has not explicitly consented, either verbally or written, to receive a particular medical procedure, but the doctor reasonably believes that the patient would have consented if they had been aware of all the relevant facts.

One example of implied consent can be if you agree to take a medical questionnaire before seeing the doctor, that can be considered implied consent for a physician to perform tests or order procedures deemed medically necessary from your answers on the questionnaire.

If implied consent is found to apply in a case, it can help to deflect claims of negligence on the part of the doctor. This is because the doctrine essentially allows the doctor to argue that they were acting in accordance with the wishes of the patient, even if those wishes were not explicitly stated.

Are There Situations Where Consent is not needed for Surgery?

There are situations where doctors can operate on someone without their consent. One example is in an emergency situation where surgery would be necessary to prevent injury or death to the patient.

In an emergency situation, a doctor would be permitted to operate on someone if they believe the benefit of the surgery would outweigh the need for consent. The doctor’s belief must be such that a reasonable doctor, faced with the same facts and circumstances, would perform the operation in the same or similar situation.

Do I Need A Medical Malpractice Lawyer For An Implied Consent Violation?

If you think that your surgery or medical procedure was performed improperly due to a lack of implied consent, it’s a good idea to discuss your rights with a personal injury lawyer.

If you believe that there has been a violation of implied consent during the course of your doctor’s treatment, consider consulting with an experienced medical malpractice attorney who can help answer your questions and concerns.


16 people have successfully posted their cases

Find a Lawyer