Medical malpractice means medical negligence; it means that the health care provider did something wrong. But medical malpractice does not always arise from the doctor making a mistake in performing surgery or misdiagnosing a condition; it can also arise from the doctor performing a certain treatment without permission.
A health care provider must have the patient's consent to treat that patient. Failure to obtain the patient's consent before treating the patient can be negligence, and can even be a crime in certain situations. When that negligence causes the patient harm, a medical malpractice lawsuit may be warranted.
Express consent is just what it sounds like; the patient specifically consents, usually in writing, to the medical treatment.
Express written consent is required for surgeries, and is often used for other types of treatment. If you have ever had surgery, you may recall that someone came around to you with a one or two page form that described the surgery, set forth a list of perhaps a dozen potential complications, and possibly even listed additional surgical procedures that the doctor might have to perform in the event of complications. The doctor would then come by to discuss the form and answer any questions that you might have about the surgery and the form. The surgery would not be done unless you signed the form.
But consent requires more than the patient merely agreeing to the procedure; the patient must give informed consent. And in order for a patient to give informed consent to a medical procedure, the patient must be informed of the risks and complications that may occur during that procedure. That is why the surgical consent form lists all of those potential complications and the doctor comes by to explain the form; the doctor and hospital are giving you all of this information to allow you to give informed consent to the surgery.
Claims for lack of express consent can arise when a doctor performs surgery on the wrong body part or if the doctor somehow decides to perform a second, non-emergency, surgical procedure when the patient only consented to the one procedure listed in the consent form.
Express consent issues can also arise when there is a complication during a surgery and a problem with the consent form like the following:
Remember that the purpose of the concept of express consent is to make sure that the patient understands the chances of success and failure of a given medical procedure. It is the patient's body, and the law requires that the patient be allowed to make an informed decision as to whether to have a certain procedure or not.
If a given procedure has a 10% risk of complication, some patients will be willing to undergo that procedure, depending on all of the circumstances, but other patients would refuse to undergo that procedure even if it had only a 1% risk of complication.
The consent form need not list every single complication that has ever occurred from the surgical procedure in question. If a certain procedure has been performed a million times, and a certain complication has only occurred once, that complication is not going to be listed on the consent form. But if a certain complication is rare, but reasonably well known because it has been discussed in the medical literature, then an argument can certainly be made that it should have been listed in the consent form.
This issue can occur when the consent form misstates the odds of a certain complication. If the complication is known to occur 5% of the time during a given procedure, but the consent form states that it occurs only 1% of the time, the consent form was wrong. If that complication occurred during the surgery, the patient may argue that he/she would not have chosen to have that procedure if he/she had known of the actual risk of complication.
Implied means to be inferred from the circumstances. Patients usually give implied consent to non-surgical forms of medical treatment by simply showing up and having the treatment.
If your doctor recommends that you get a flu shot, and you get the flu shot without signing anything or actually saying to the doctor, “I consent to getting the flu shot,” you are deemed to have given implied consent to the flu shot.
Implied consent can also arise with an emergency situation and an unconscious patient. If someone is found unconscious on the street and is brought to a hospital, where it is determined that he/she requires immediate surgery, the doctrine of implied consent allows the surgery to be performed even if the patient cannot consent to the surgery because he/she is unconscious and no family member can be found to consent to the surgery.
Not on its own. In order to bring a medical malpractice claim, the patient has to prove the doctor (or hospital or other health care provider) caused harm, and that harm was the direct result of the negligent act – the consent violation in the context of this article.
Patients file a medical malpractice lawsuit to seek compensation for damages. If no actual harm resulted from the consent violation, there are no damages for which to sue. As much as you may want to punish the healthcare provider for a wrong, a civil lawsuit functions to compensate you for your losses, not “administer justice”. Consent violations may be a crime in certain situations, but whether criminal charges can be brought is usually up to the D.A., not the patients.
Consent issues in medical malpractice cases are tricky. If you think your case may warrant a medical malpractice lawsuit, you'll need to talk to a local attorney with experience in medical negligence cases.