What is Implied Consent, and Does it Affect my Virginia Medical Malpractice Case?

Our Fairfax medical malpractice attorneys have heard many defenses from doctors in DC medical negligence cases. One is that a patient gave consent for a particular treatment, but the patient assures us that they did not. So who is right?

Giving Consent For A Medical Procedure

There are generally two ways a patient can give consent for a medical procedure. When a patient agrees to a procedure verbally or signs a document in writing, he is said to have given “express” consent, or has understood the procedure and risks and made a fully conscious decision.

However, there is a second form of consent that is more complicated. “Implied” consent is not directly given by the patient. In this case, the patient has understood the circumstances of the procedure and is aware of the response to possible complications.

Here are a few ways consent may be implied:

  • A patient is receiving treatment for a non-invasive, non-complex procedure. 
  • The doctor performed an action in the course of a procedure that was not expressly permitted by the patient, although the patient did consent to the procedure itself.
  • A patient was unconscious or unable to give consent and the doctor performed a lifesaving act.

You May Be Entitled To Damages If:

  • You did not provide your informed consent prior to treatment. If your physician failed to inform you about your diagnosis, the benefits and risks of the suggested procedure, the availability of other procedures, and the risks of going without treatment, then you could not provide your informed consent to the procedure.
  • You were hurt during the course of treatment. You may have been hurt during the course of treatment if you suffered an adverse effect which would not have occurred without the procedure.
  • You would not have consented to treatment if you had been given all the information necessary to make an informed decision. You will need to prove that, had you been provided all the information necessary for informed medical consent, you would have chosen not to have the treatment or procedure done.

If you successfully prove that you did not provide your informed consent, that you were hurt during treatment, and that you would not have consented to treatment if you had been given all the information necessary to make an informed decision, then you may be able to collect damages for your medical costs, lost income, out-of-pocket expenses, and pain and suffering.

Contact a Virginia Malpractice Attorney

As trusted Virginia medical injury attorneys, we know that doctors are required to obtain permission for any acts that could potentially affect a patient’s life. For instance, the actual person who will be performing the procedure should obtain consent whenever possible, and all written consent should include the name of the health care provider who explained the treatment, and the date, time and location that the event is to take place.

If someone you love was injured due to lack of informed consent in DC, our team can get you the compensation you deserve. Call Shevlin Smith today at (703) 591-0067 for a FREE consultation on your case.

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Michael J. Shevlin
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Specializing in medical malpractice and serious personal injury cases since 1994.
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