May 30, 2024

Patients are entitled to damages (compensation) for bodily injury after medical malpractice. Unfortunately, medical malpractice lawsuits can be complex and most people have lost genuine medical malpractice claims due to bad legal representation, or none at all. Medical professionals must get “Informed consent” from patients before performing medical procedures.

Informed consent means that patients should be informed of the means they must be made fully aware of the risks and complications associated with a medical procedure treatment. Consent in medical lingo assumes two forms– express or implied consent. Victims of medical malpractice should contact a Bakersfield personal injury lawyer who can help them initiate a legal process to get the justice they deserve.

Express vs. Implied Consent

The two terms “express and implied consents” are often confused and even used interchangeably. However, the distinction is that express consent involves the act of giving written or verbal permission to a medic before a medical procedure is performed on a patient. Medics or medical facilities require express permission, particularly when performing complicated or sensitive medical procedures, such as surgery.

On the other hand, implied consent can either be given through signed waivers or the display of willingness by a patient to undergo a medical procedure. Whatever consent is given, patients should be made aware of the risk associated with a recommended treatment plan, unless the case is an emergency.

Giving Express Consent

Express consent can be triggered by several actions on the part of a patient or their representative, including:

  • A verbal statement accepting a medical procedure, such as “I’m okay with the treatment plan”;
  • Signing a medical waiver or a similar document;
  • Signals suggesting acceptance of a medical procedure.

Written permissions are necessary and mandatory for risky procedures that typically have far-reaching consequences if something goes wrong–treatments given to patients under research programs are also subject to express consent.

Giving Implied Consent

Implied consent typically focuses on the actions of a patient which can complicate the legal process in the event of an injury. The following actions can be used by patients to permit doctors to perform medical procedures under implied consent.

  • Nodding the head as a sign of accepting a medical procedure;
  • Extending the arm to allow a blood sample test;
  • Fasting before a scheduled surgery;

Implied consent can also arise during surgery. For instance, when additional procedures are needed to ensure a surgical procedure succeeds–signing a waiver for additional treatments can also be applicable in this case.

How Confusion Comes in

Doctors sometimes perform medical procedures without their clients’ consent triggering medical malpractice claims. However, the error can be unintentional or overt in some cases. For instance, when a patient consents to a surgery targeting one part of their body but the doctor operates a different body part in addition to the consented part.

An extra procedure alters the patient’s physical appearance although the procedure wasn’t consented for by the patient. Confusion can also come in when a doctor fails to explain the details of a procedure to a patient–confusing the patient thanks to misunderstanding.

Importance of Express Consent

Express consent can help medical professionals or facilities avoid malpractice claims although it doesn’t eliminate the responsibility of doctors fully. In other words, doctors are still responsible in certain circumstances even after getting a patient’s consent. The law states that patients must be informed and made to fully understand the nature, purpose, side effects, benefits, and risks associated with a medical procedure or treatment plan. You can’t give informed consent without accurate information according to this law.

Although patients can get extensive and accurate information through leaflets, doctors are expected to engage their clients to ensure they fully understand the recommended medical procedures. Face-to-face interaction between the doctor and their clients provides an opportunity for the patient to ask any questions about anything they don’t understand. A patient can file legal action if they gave consent or signed a medical waiver without understanding the consequences of a medical procedure that turned out catastrophic.

Doctors Have Other Responsibilities

Doctors are expected to provide standard care to their clients (patients) in addition to obtaining express consent. A duty of standard care medical practice can include:

  • Diagnosing the patient accurately;
  • Considering a patient’s medical history and current treatment plan before settling for a medical procedure;
  • Following up with the patient throughout their recovery;
  • Prescribing appropriate medications, and in the right doses;
  • Providing instructions to help their patients recover fully after discharge.

A medical professional or facility can be held responsible for acts of commission or omission that result in injury or worsening of a condition. You can also file an injury claim if your loved one is a victim of medical malpractice.

Express or implied consent from a patient to a medical professional is necessary when performing sensitive medical procedures. A legal expert can advise you more on this subject.

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