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What Is the Difference Between Expressed and Implied Consent?

Posted on 03/03/22

When it comes to giving consent to medical treatments, people often confuse express and implied consent. This distinction is important, as a lack of informed consent can be used as grounds for a statutory cause of action in New York. Filing a medical malpractice action based on a lack of informed consent could result in financial compensation for your related losses as an injured patient.

Expressed Consent vs. Implied Consent

Essentially, expressed consent is a patient’s direct approval of treatment, such as signing a consent form or verbally agreeing. Implied consent is indicated through the patient’s actions or behavior, such as nodding.

For example, if a doctor asks whether the patient has read and understood all of the information about the surgery and agrees to undergo it, a patient giving express consent states, “Yes.” Implied consent is most common in emergencies, where a doctor must intervene to save a patient’s life without waiting for their ability to express consent.

What Is Lack of Informed Consent?

In New York, a patient cannot give informed consent if the patient does not know what he or she is agreeing to. Lack of informed consent means that the patient did not know about or accept the risks of the treatment or procedure, and therefore may be able to file a lawsuit for adverse outcomes. This type of medical malpractice is known as a Lack of Informed Consent cause of action in New York.

Elements Required for a Lack of Informed Consent Lawsuit

In New York, “Lack of Informed Consent” is a statutory cause of action under Public Health Law (PBH) Section 2805-d. This law defines this tort as the failure of the person responsible for providing professional treatment or diagnosis to give the patient available alternatives and list the reasonably foreseeable risks and benefits involved. The standard of care for informed consent is what a reasonable medical, dental, or podiatric practitioner would have disclosed under similar circumstances, with the goal of permitting the patient to make a knowledgeable evaluation. This type of claim requires the following elements:

  • The incident must have involved nonemergency treatment or a diagnostic procedure involving invasion or disruption of the integrity of the body. A patient generally cannot sue for issues related to consent for emergency care.
  • A reasonably prudent person in the patient’s position would not have agreed to the procedure had he or she been fully informed.
  • The lack of informed consent is the proximate – or main – cause of the injury or condition for which the plaintiff is seeking financial recovery.

The burden of proof is a preponderance of the evidence; the plaintiff must demonstrate that there is a greater than 50 percent chance that the claim is true. Note that it is a defense to a Lack of Informed Consent claim to prove that the risk that was not disclosed was commonly known, that the patient assured the provider that he or she would undergo the treatment regardless of the risks involved, or that the patient did not want to be informed about the procedure. 

Medical Procedures Typically Require Express Consent

If a physician fails to receive the informed consent of a patient for a treatment that results in injuries, such as nerve damage or permanent paralysis, the victim can file a medical malpractice lawsuit in pursuit of financial compensation in New York under PBH 2805-d. If you or a loved one recently suffered an injury after not giving informed consent to the treatment, contact a medical malpractice lawyer in Buffalo right away at Towey Law for a free case evaluation. A medical provider in New York may be financially responsible for your losses, which can be achieved with the help of our Buffalo personal injury lawyers.