What is the Difference Between Express and Implied Consent?
Bill Allen | January 31, 2022 | Medical Malpractice
It’s common for people to defer to their doctor’s medical advice and recommendations. After all, a doctor spends years in medical school and residency programs and completes national board exams designed to test their skills. While your doctor might know best when it comes to medicine, they still need your permission to perform certain treatments and procedures.
This permission is called consent, and there are two different types: express and implied.
What is Express Consent in Florida?
Express consent refers to when a doctor explains the risks associated with a proposed treatment to a patient. After hearing the explanation, the patient agrees (either orally or in writing) to undergo the treatment. This is also known as express informed consent because the patient is fully informed before agreeing to undergo the procedure.
Under Florida law, doctors must tell patients certain information in plain English before seeking express consent. This information includes:
· Reason for admission or treatment
· Proposed treatment
· Purpose of the proposed treatment
· Common risks, benefits, and side effects of the proposed treatment
· Dosage for the medication (if applicable)
· Alternative treatment options
· Length of care after undergoing the proposed treatment
· Side effects of stopping or failing to undergo the proposed treatment, and
· How the treatment and progress is monitored
Only after making sure that the patient truly understands the risks and options available can the doctor legally ask the patient for express consent (usually by signing a waiver).
What is Implied Consent in Florida?
Implied consent is different from express consent because it is based on a patient’s actions, not their words.
Implied consent is given when a patient’s actions indicate that they agree to treatment. For example, a patient may give implied consent for a flu shot after making an appointment for the shot, rolling up their sleeve in the office, and holding their arm in place while the doctor injects them. Implied consent might also be as simple as a head nod in agreement.
More commonly, implied consent happens in emergencies. When someone is unconscious and brought into the emergency room, doctors generally have the right to care for the patient and perform procedures to save their lives. This is true even though they can’t talk with the patient. That’s because our society recognizes most people are willing to consent to life-saving treatments.
Can Everyone Consent?
Not everyone has the right to consent to medical treatments. Florida recognizes a few groups of people who are unable to give either of the two types of consent.
1. People who are legally incompetent or adjudicated incapacitated (are not mentally capable of making decisions in their best interest or to take care of themselves)
2. Minors (under the age of 18)
When these people are patients, the doctor must have a legal guardian or advocate consent on behalf of the patient. This might be a parent, a person appointed by the court, or a legal proxy designated by the person to make medical decisions.
What Happens if I Never Consented to Medical Treatment?
It’s infuriating to realize that your doctor performed a procedure without your permission. It’s more common for a doctor to go beyond the scope of what you agreed to have done. If this experience sounds familiar, it might be the basis of a medical malpractice lawsuit — especially if you experienced further injury or harm because of it.
You can also file a lawsuit even if the doctor explained the procedure to you, but the explanation was confusing, misleading, or inadequate compared to what you experienced. Just make sure that you file it within the statute of limitations of 2 years so that you don’t run out of time.
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