Medical malpractice occurs when a medical practitioner does not deliver the duty of care they are obligated to deliver under the law. When a patient suffers a preventable injury or harm at the hands of a medical practitioner or institution, or when a patient doesn’t receive a necessary form of treatment that the practitioner reasonably should have offered, medical malpractice is often present.

What is Informed Consent?

In a surgery setting, informed consent refers to the requirement that a doctor must obtain a patient’s permission before they perform surgery on them.  There are two parts to informed consent: First, the patient needs to be informed of the risks and dangers involved in the medical treatment.  Secondly, the patient needs to consent to the surgery after they have been informed of such information.

Failure to follow informed consent laws can result in a medical malpractice lawsuit against the doctor or the hospital.  This may happen even if the surgery was successful- it’s considered an invasion of one’s bodily privacy for surgery to occur without informed consent. 

A common example of this is where a cosmetic surgeon performs plastic surgery on their eyes, whereas the patient only consented to surgery on their nose. Here, although the plaintiff may not have been injured, they may be left with physical changes that they didn’t really consent to.  Other examples are where organs are removed without the patient’s knowledge.

How Can Implied Consent Affect a Malpractice Claim?

To prove medical malpractice, there must be harm done to the patient, and it must be proven that the harm done to the patient was the direct result of negligence on the part of the medical provider or practitioner. The provider will make every attempt to diffuse this responsibility. If a patient didn’t give express consent, the defendant may argue implied consent. If the patient showed up for the procedure, for example, it can be argued that he or she consented to the procedure implicitly. Nodding a head or giving other verbal or body language cues can be used as proof of informed consent in some cases.

What does “Express” or “Implied” Consent Mean?

A patient’s informed consent can be obtained in two ways: Either through Express consent, or through Implied consent.  Express consent is when the patient directly communicates their consent to the doctor.  This is usually done in writing by signing papers.  It can also be supported through oral or verbal communication with the doctor (such as saying, “Yes, I consent”).

Implied consent is more difficult to prove than express consent.  Implied consent occurs through the actions or conduct of the patient rather than direct communication through words.  For example, informed consent can be implied from patient’s nodding of the head, or by them showing up at the agreed upon time for surgery.  If the patient has prepared themselves for surgery by fasting for the previous 24 hours, this might also serve as proof of implied consent.

Thus, implied consent in a medical malpractice claim is usually understood from the facts and circumstances surrounding the treatment.  In many cases, if a patient expressly consents to a surgery, it is also implied that they consent to any other procedures that are necessary for the success of that surgery.  For example, it’s common for implied consent forms to include a waiver or statement saying that the patient also consents to other procedures as necessary, even if the procedure isn’t specifically named in advance.

Are There Situations Where Informed Consent is not needed for Surgery?

Yes- informed consent usually isn’t needed during very serious emergency situations.  In such settings, the injured person may be unconscious, or their life may be in danger.  There may not be enough time to obtain their consent, or it may be impossible to do so. 

Obtaining informed consent is sometimes not required it the patient is unable to physically or emotionally respond to being informed about medical surgery risks. 

Do I need to obtain a lawyer for issues with Implied Consent and Medical Malpractice?

Proving implied consent in a medical malpractice can often be very difficult to do.  It involves a thorough determination of all the facts and events leading up to the surgery.  If you believe you have wrongfully been subjected to a surgery, you may have a medical malpractice claim.  A qualified personal injury lawyer in your area can help you file a lawsuit in court, so that you can obtain the appropriate remedy for your losses.