What is the Difference Between Express and Implied Consent under Pennsylvania law?

April 4, 2022 | Medical Malpractice

What is the Difference Between Express and Implied Consent under Pennsylvania law?

Many people have heard the phrases “express consent” and “implied consent” before. But do they really know what those terms mean? While these phrases might not be important in everyday life, they are very important when it comes to medical care and treatment. 

As a patient, you have the right to certain information before a doctor, or health professional performs invasive treatments. And, in emergency circumstances, you need to know what kind of consent doctors or medical professionals can assume.  

In certain cases, doctors or health professionals must obtain express consent from a patient to perform treatments or tests. To obtain express consent, doctors will have a patient read and sign forms that explain the treatments in detail and provide the doctor or health professional with authorization to perform the treatment or test. 

Many times doctors or health professionals will provide a verbal explanation of the treatments or tests in addition to the written explanation in the forms. 

For a doctor to truly receive express consent from a patient for certain treatments or tests, they must inform the patient by providing an explanation of:

  • The patient’s condition requires treatment or testing;
  • The treatment or test;
  • How the doctor will perform treatment or test;
  • The potential risks and benefits of the treatment or test;
  • The potential risks of not receiving the treatment or test;
  • The expected results from the treatment or test;
  • Any alternatives to the proposed treatment or test;
  • The potential risks and benefits of any alternatives to the proposed treatment or test;
  • Why the doctor believes the proposed treatment or test is the best court of action for the patient.

Express consent is not the only form of consent to medical treatment.

Implied consent is generally less strict than express consent. In the medical context, implied consent may come from the patient’s actions rather than a written or signed authorization like in express consent. Implied consent is common when doctors or health professionals are proposing minimally invasive or less risky treatments or tests. For example, if a patient holds out their arm for a blood draw or rolls up their sleeve for a vaccination, those actions can be implied consent to the proposed treatment or test. 

Implied consent is also common in medical emergency situations. For example, if a patient is severely injured and unresponsive when they arrive at the hospital after a motorcycle crash, a doctor or medical professional may imply that the patient would consent to life-saving treatment. The doctors and medical professionals would be operating on the assumption that the patient would consent to the treatment if they were responsive and able to provide consent.

If a doctor or health professional fails to provide a patient with adequate information regarding a proposed treatment or test, the patient is unable to truly give the doctor or health professional express consent. Suppose the patient is unable to give a doctor or health professional express consent to a treatment or test, and the patient is harmed as a result of the lack of consent. In this case, the doctor or health professional may have committed medical malpractice. 

For example, suppose a patient comes to their doctor complaining of shortness of breath, chest pains, and being physically tired. The doctor diagnoses the patient with high blood pressure and prescribes a new blood pressure pill — but fails to provide additional information about the pill to the patient. Specifically, the doctor fails to explain to the patient that taking the new blood pressure pill may increase the possibility of a seizure by 10%. 

Within a few weeks of taking the new blood pressure pill, the patient has a seizure and suffers physical injuries and memory loss. The doctor’s failure to provide information about the risks and benefits of the new blood pressure pill may be medical malpractice. 

Patients who are injured because of a lack of consent could be entitled to compensation for damages such as:

  • Medical costs;
  • Permanent impairments or disabilities;
  • Loss of income and benefits;
  • Changes in earning potential;
  • Pain and suffering;
  • Emotional distress;
  • Mental trauma.

If your doctor subjected you to treatment without first obtaining consent, contact a personal injury lawyer for help.

Contact an Award-Winning Pennsylvania Medical Malpractice Lawyer For Help

If you or a loved one has sustained an injury in Harrisburg or elsewhere in the state of Pennsylvania, contact Marzzacco Niven & Associates. Our award-winning Harrisburg Medical Malpractice lawyers can help you understand your rights and fight to secure the financial award you may deserve. Please contact us at the nearest location to schedule a free consultation today:

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