Peter Catania | October 1, 2021 | Medical Malpractice
Medical care is meant to treat or guard against injury or illness. However, there are instances when a patient may be harmed as a result of care they receive.
Sometimes, this occurs even when a health care provider is responsible. Certain forms of treatment are inherently risky. Patients should be informed of the risks associated with their treatment before consenting to it.
Unfortunately, sometimes a patient is harmed because a physician is negligent. They may also be harmed because they did not consent to a treatment method. Or, they may be harmed because they consented to a procedure without being informed of the risks involved.
That said, it’s important to understand that proving medical malpractice can be challenging. The criteria for proving medical malpractice under Florida law are fairly strict.
Additionally, each medical malpractice case is unique. For example, perhaps you were harmed as a result of a procedure. Maybe you didn’t directly consent to this treatment.
It’s possible you can seek compensation for your losses accordingly. However, the fact that you did not explicitly state you consented to a procedure doesn’t mean you’re immediately guaranteed a payout. This is because there are two types of consent in these cases: express consent and implied consent.
Express Consent vs. Implied Consent: Understand the Difference
Express consent occurs when a patient clearly and directly states they consent to treatment. This would involve signing a document indicating they consent to a procedure or verbally stating they consent to a treatment or procedure.
Implied consent is more complicated. Implied consent is a form of consent in which a patient indicates they agree to receive treatment without clearly stating it. Examples of implied consent include the following:
- During an appointment with their doctor, a patient understands they may receive a shot. When the doctor approaches them to give the shot, the patient rolls up their sleeve.
- A doctor advises a patient to take certain steps to prepare for surgery in the days before a procedure. A patient takes these steps and arrives for their appointment.
- A patient makes an appointment for a routine treatment or procedure (such as a physical) and undergoes forms of care commonly associated with that procedure.
It is usually clear when a patient did not give express consent. That said, proving whether a patient gave implied consent or not can be difficult.
For example, maybe a patient consented to a form of treatment after being informed that risks were involved. Perhaps they were harmed because a doctor failed to describe the risks in a way that a patient could fully understand. In this scenario, there may be a dispute between a patient and their physician regarding whether valid consent was given.
In some cases, physicians are also permitted to treat a patient even if they were unable to give consent directly. An example of this would be a doctor performing an emergency life-saving procedure on a patient who is unconscious.
The patient may not be able to give their consent in this situation directly. However, a doctor could reasonably assume that they would want a life-saving procedure to be performed on them. Often, a doctor could reasonably make this assumption even if said procedure has the potential to cause harm.
Implied Consent Disputes: What Patients Need to Know
None of this is meant to discourage patients from taking legal action when they believe medical malpractice has occurred. It’s meant to highlight the importance of seeking representation from professionals familiar with the law. If a patient is unsure whether they have grounds to file a claim or lawsuit, they should review their case with a medical malpractice attorney. A lawyer can go over the details and let them know whether implied consent is a factor that might influence their odds of recovering compensation.
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