Implied Consent in Medical Treatment: Protecting Your Legal Rights

Consent is an expression of autonomy reflecting a patient’s right to decide for their body. Regardless of a healthcare provider’s intentions and opinions, the patient’s approval is always necessary. 

The right to informed consent is inviolable in any medical treatment. A medical professional who violates this right would be liable for damages in a medical malpractice case. Recent statistics show that average court settlements award $425,000 per patient, regardless of specialty.

There are two types of consent: express consent and implied consent. Both have specific legal implications but are equally important. However, the nature of implied consent makes it more susceptible to abuse in medical decision-making processes.

A healthcare professional may acquire a patient’s implied consent without their active participation, especially during emergencies. Considering its sensitivity and underlying complexities, people should learn more about it.

If you need an accessible online platform to grow your legal knowledge, explore The Medical The Personal Injury Center. It has easy-to-read resources for parties interested in knowing more about informed consent, medical malpractice, and other relevant matters.

Key Takeaways
  • Consent in medical treatment can either be expressed or implied.
  • Improper acquisition of implied consent in healthcare procedures can lead to legal action in a medical malpractice case.
  • Patients who suffered personal injuries due to medical malpractice may claim rightful compensation against their healthcare providers.

Purpose of Consent in Healthcare

The primary purpose of establishing informed consent is to protect patients. Receiving complete and accurate information can help patients make informed and intelligent healthcare decisions. Informed consent helps patients expand their options for taking care of themselves.

Acquiring informed consent also grants legal protection to attending healthcare professionals. It may deter disgruntled patients from filing an unauthorized practice claim and other harassment suits.

Above all, informed consent reinforces that healthcare is a collaborative process. By providing well-rounded information, medical professionals can build a patient’s trust. Medical team members should act as guides, ensuring patients are safe, content, and confident with their decisions.

Types of Informed Consent

Informed consent can either be express or implied. Both enable healthcare providers to conduct medical care on patients. The main difference between the two is the way permission is given.

Patients often grant express consent orally or in writing. The most common form of express consent is signing a consent form before undergoing medical tests. 

In contrast, implied consent is indirect and passive. Patients may express this type of consent through their actions. For example, when the medical technician asked to draw blood, you rolled up your sleeves and did not resist.

Consent Necessary in Medical Treatment

Healthcare providers conducting medical treatment should always seek patients’ informed consent. Informed consent involves informing patients about their health, the medical treatment they are going through, and its intricacies. Attending medical professionals must ensure patients understand and freely agree to an upcoming medical intervention. 

Failure to obtain informed consent constitutes ethical and legal violations of patients’ rights.

Elements of informed consent

What constitutes informed consent may vary according to purpose. The elements critical in a medical procedure are as follows:

  • Nature of the procedure
  • Risks and benefits of the proposed course of treatment
  • Potential alternative treatment options and additional procedures
  • Advantages and disadvantages of the alternatives
  • Assessment of whether the patient understood the other elements

Aside from providing sufficient information, healthcare providers must exert reasonable efforts to help patients understand their situation. Doing so ensures that patients maintain their autonomy as a decision-maker. Lack of informed consent is a common reason patients sue for medical malpractice.

Unfortunately, only 26.4 percent of consent forms stipulate the essential elements of informed consent. This statistic suggests that most patients are at risk of abuse and misinformation.

What Healthcare Providers Should Disclose to Patients

The landmark case Canterbury v. Spencer set guidelines on what healthcare providers should disclose to ensure patients make informed decisions. In this case, the court decided the petitioner’s physician should have relayed the following:

  • Patient’s condition that is undergoing treatment 
  • Nature of the proposed treatment
  • Anticipated outcomes of the procedure 
  • Alternative treatments
  • Potential risks, complications, and benefits of the process and its alternatives

The law requires attending medical professionals to disclose information that reasonable patients may consider crucial. In Nixdorf v. Hicken, the doctor should have informed the patient about their possible health condition following the treatment. 

Although physicians have a duty to provide patients with sufficient information, they may withhold some of the truth. Besides being accurate, health professionals must be sensitive and respectful when disclosing information to their patients. They may deliver pertinent health information in parts and sequences appropriate to the patient’s needs.

Exceptions to Informed Consent

Exceptions to informed consent exist to promote patients’ health and accommodate instances when they cannot make independent decisions. Here are three of the most common examples:


Emergencies compel healthcare providers to conduct a medical procedure without obtaining a patient’s consent. During these situations, the patient is at imminent risk of serious harm and is already experiencing injuries. 

In Mohr v. Williams, the court explained that for the emergency exception to apply, the following elements must be present:

  • the patient can not communicate because they are unconscious or for other reasons 
  • the proposed treatment’s benefits exceed the assessed risks

The premise of this exception is that a reasonable person would have consented to a life-saving medical intervention. It is only their lack of consciousness that prevents them from approving.

Therapeutic exception

The therapeutic exception allows medical professionals to withhold relevant health information to promote the patient’s best interests. Some medical details could upset patients, preventing them from being rational decision-makers. 

In Nishi v. Hartwell, the court declared that doctors’ duty to disclose a procedure’s benefits, risks, and alternatives is not absolute. In this case, the court sided with the physician in deciding not to reveal a particular side effect. Informing the patient would cause them to overreact and discourage them from undergoing the procedure. 

While some patients could be too psychologically fragile to be the decision-maker, doctors should not immediately resort to the therapeutic exception. Instead, they should go to court and request the appointment of a legal guardian to decide for the patient. 

Surrogate consent

US consent laws allow third parties to exercise a patient’s right to informed consent. This process is known as surrogate consent. The proxy or surrogate decision-maker will stand in for patients who lack or have lost their decision-making capacity. 

To be a surrogate decision-maker, a candidate should be a:

  • family member
  • individual named by the patient while still capable of rendering informed consent
  • individual designated by law or statute

The responsibilities of proxies may change depending on the patient’s identity. One of the most relevant factors is whether the patient is a child or an adult. 

A person may independently provide informed consent once reaching 18 years old. Children or minors may only assent or dissent to a medical procedure. It is their guardians who will decide and maintain communications with healthcare providers.

Some states allow minors to decide independently of their legal guardians to undergo specific procedures. For example, Section 19a-601 of the General Statutes of Connecticut enables a teenager to undergo an abortion without parental intervention.

Unlike children, adults already have a right to informed consent. However, consent laws anticipate circumstances when adult patients can no longer exercise their rights due to physical or mental incapacity.

When someone surrogates for an adult patient, the proxy should follow their advanced directives. These legal documents contain medical care instructions set by a patient. 

Overview of Medical Malpractice

Violations of informed consent can prompt injured parties to raise a medical malpractice claim. While it is easy to allege injuries and demand compensation, proving the existence of medical malpractice can be tricky. 

Petitioners should establish the following elements to build a solid medical malpractice case:

  • the medical professional owes a professional duty to the patient
  • the at-fault party breached their professional duty
  • the patient incurred injuries because of the breach
  • the breach was the proximate cause of the injuries

Lacking any of these elements may weaken a patient’s claim and make them ineligible for compensation. 

Medical Malpractice Claims Relating to Implied Consent

Here are some common scenarios when implied consent may give rise to medical malpractice claims: 

Surgical errors

It is common for physicians to conduct emergency surgeries to save the life of dying patients. In this scenario, implied consent exists as the situation falls under an emergency. Generally, the patient may not file a medical malpractice claim against their surgeon.

However, a patient’s implied consent does not validate surgical errors. Suppose a patient is injured during an emergency surgery because the surgeon was negligent or failed to follow the standard of care. They may still have grounds for a medical malpractice claim. 


Implied consent may suffice for immunization purposes. In O’Brien v Cunard SS Co., the court denied a woman’s trespass claim because she impliedly agreed to a smallpox shot. The woman stayed in line for vaccination and offered her arm freely when it was her turn.

Adults can freely agree to an immunization. However, minors may need the approval of their parents or legal guardians. The absence of parental consent can be a cause of action for a medical malpractice case.

Access to medical records

Some state laws require patients’ informed consent before healthcare providers can access and utilize their health information. Most of the time, patients relay their consent impliedly. For instance, allowing doctors to conduct a physical check-up without showing signs of resistance counts as implied consent.

An example of when doctors violate a patient’s implied consent is by taking advantage of third-party information. Some medical providers illegally use what patients share about the health of their families and sexual partners.

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Proving Lack of Consent in a Medical Malpractice Case

Self-serving statements by the patients are insufficient to prove they did not consent to a medical procedure. They must present substantive evidence to support their claim, including medical records, written documentation, and witness testimony. 

Elements of lack of informed consent

Patients may sue their healthcare providers for conducting non-emergency medical procedures without their informed consent. To file a successful medical malpractice claim under this premise, you must prove the following elements:

  • A doctor-patient relationship exists
  • The medical practitioner performed a medical procedure without the patient’s informed consent, whether expressed or implied
  • The medical process caused injuries to the patient
  • If the patients knew about the risks, they would have withdrawn from the procedure

Waiver against filing a medical malpractice case

It is rare for hospitals to let patients sign a waiver against filing a medical malpractice suit, especially for major surgeries. The waiver signifies that the patient is aware of the procedure’s risks and they have freely given their informed consent. 

Healthcare providers and institutions may use the waiver to deny patients’ claims regarding treatment-related injuries. However, there are instances when patients can still file a medical malpractice claim despite signing the waiver.

Patients can question the validity of acquiring their informed consent. Aside from thoroughly explaining the procedure, healthcare providers should assess whether the patient understood the information provided. Patients who do not fully understand the treatment they are undergoing cannot provide informed consent.

Right to Compensation

Patients may claim compensation from erring healthcare providers for financial expenses and losses caused by their mistakes.  

Negligence of healthcare provider

Medical negligence refers to acts or omissions by a healthcare professional who did not observe the applicable standard of care. Such failure causes injury or death to patients.

One form of medical negligence is the failure to obtain a patient’s informed consent. Patients have a right to receive enough information to make rational decisions about their medical treatment.

Injuries arising from the improper acquisition of implied consent

Improper acquisition of implied consent may cause the following injuries to patients:

  • Partial or total loss of limbs
  • Partial or complete dysfunction of organs
  • Complications of pre-existing conditions
  • Emotional distress
  • Anxiety
  • Depression

Recoverable damages

Victims of medical malpractice cases may claim compensatory damages, which can be classified as special or general. Special damages cover physical losses like medical costs and lost wages. In contrast, the general damages cover intangible losses like pain and suffering.

Other than compensatory damages, victims may also receive punitive damages. Its purpose is to deter the repetition of the at-fault party’s grave misdeeds. The grant of punitive damages is at the court’s discretion.

Did you know?

Expressed consent is necessary to harvest organs from the deceased. Implied consent from the donor or their kin does not validate the donation.

Consult a Top-Tier Medical Malpractice Lawyer 

Unlike express consent, implied consent is passive. A medical professional may interpret your action or inaction as consenting to a medical procedure. Everyone should learn extensively about implied consent to avoid compromising the legality of their decision-making rights.

You may also file a medical malpractice claim against the healthcare provider who violated your right to informed consent. However, before taking any action, always seek legal advice. Talk with a reliable medical malpractice lawyer to determine your best options.

The Medical The Personal Injury Center is an online platform that provides reliable resources and access to a legal network. You can undergo our free case evaluation so we can match you with the best local lawyers with experience in medical malpractice cases.

Your implied consent in healthcare procedures can open loopholes for abuse. Visit The Medical The Personal Injury Center to connect with the best medical malpractice lawyers in town.

FAQs on Implied Consent in Medical Treatment

Whether express or implied, informed consent is revocable. Patients may freely retract their approval at any time and for whatever reason.

It depends. The patient's sudden loss of consciousness can be a new medical emergency. In this case, a healthcare provider may proceed with the medical care without the patient's consent.

No. Valid DNRs prevent health practitioners from conducting CPR on the patient. The implied consent rule for emergencies may not apply in this scenario.