Morgan Gaynor | March 30, 2021 | Medical Malpractice
Medical errors can take on a number of different forms. One error that can support a medical malpractice suit is when a doctor fails to obtain a patient’s informed consent before performing a treatment or operation.
When you consult with a doctor, you are entitled to a complete discussion about your condition and the associated treatment options. After your discussion, the doctor must obtain your consent to proceed with treatment. Doctors call this process “informed consent.”
Informed consent can be express or implied. Both forms of consent are equally valid, but implied consent is more difficult to establish.
Here are some things that you should know about express and implied informed consent as they relate to medical treatment.
Informed Consent Under Florida Law
Florida has a medical consent law. This law shields healthcare providers from liability for performing treatment without patient consent if the patient’s communications with the medical professional met certain standards.
Informed consent is often used as a defense against medical malpractice claims. Suppose that an injured patient claims that a doctor performed a procedure that they did not consent to. The doctor can use evidence of informed consent to defend against the claim.
Written consent creates a rebuttable presumption that the healthcare provider obtained valid informed consent. This means that an injured patient claiming medical malpractice must prove the written consent did not count as informed consent.
Unwritten consent is still consent. But unwritten consent does not create the rebuttable presumption of validity. A doctor or medical professional will have the burden of proving their patient consented to an operation or treatment.
Express Consent vs. Implied Consent
Confusingly, “express” in this case is not the same as “written.” Likewise, implied consent does not mean unwritten consent. Rather, these categories refer to whether consent is drawn from communication or implied by the circumstances.
Express consent can be written or unwritten. Express consent consists of the patient’s communication assenting to the medical procedure.
It could include:
- Written consent
- Oral consent
- A court order
In any of these situations, consent is drawn from communication.
Implied consent can also be written or unwritten. But implied consent is drawn from the circumstances. As a result, doctors have a difficult time documenting implied consent.
A few examples include:
Requests for Treatment
Requests for treatment can imply consent for some treatment but not others. For example, If a gunshot victim staggers into an emergency room and says, “save me,” the doctors probably have implied consent to treat the gunshot wound. However, they probably do not have consent to remove a tumor they find while extracting the bullet.
Ambiguous consent can sometimes form the basis for implied consent. For instance, suppose that a dementia patient falls and breaks her leg. The doctors send a text to the emergency contact for permission to set the patient’s leg. The emergency contact replies, “Whatever.” The doctors can infer consent.
Non-verbal consent, such as nodding or a thumbs up, could suggest implied consent to treatment. Say a patient with a brain injury nods and smiles after the doctor finishes speaking. The doctor may interpret the motions as consent.
Validity of Informed Consent
Under Florida’s medical consent law, the burden to prove valid informed consent depends on whether the consent was written or unwritten.
Written consent shields a medical provider from a patient’s claim they did not consent to treatment. The patient’s injury lawyer must prove that the written consent was invalid to win their case.
Unwritten consent does not shield a medical provider from an informed consent claim. Instead, the medical provider’s lawyer must prove that the consent was valid.
Valid informed consent requires:
- A competent patient
- Disclosure by the doctor
- Comprehension by the patient
- Voluntary assent
If the process misses any of these elements, then it is assumed that the patient did not give informed consent. However, a patient’s lawyer can attempt to disprove informed consent regardless of whether the patient’s consent was express or implied.