Table of Contents
- When Would Expressed Consent Be Needed In Health Care?
- What Is the Difference Between Express Consent And Implied Consent?
- What Are the Exceptions To Needing Informed Consent?
- Is Express Consent Required in Florida?
- What Should Be Included in the Process of Obtaining Expressed Consent?
- Can Expressed Consent Be Revoked?
- Can a Lack of Express Consent Constitute Medical Malpractice?
- Is There a Time Limit To File a Claim for Lack of Express Consent?
- Seek Legal Guidance for Your Healthcare Consent Concerns
Express consent means you have given intentional written or verbal agreement to accept medical treatment. Written consent is more common because it provides health care providers with proof that you gave informed consent. Informed consent means your doctor explained the risks, benefits, and alternatives to treatment before you agreed to receive it.
Express consent is not always required. In some cases, consent can be implied by your actions. In any case, you have a legal right to make an informed decision before receiving medical treatment. Healthcare providers who perform medical procedures without informed consent may be liable for medical malpractice if the treatment results in an injury.
When Would Express Consent Be Needed In Health Care?
In Florida, health care providers must obtain informed consent before providing any medical treatment. Express consent may not be necessary for routine procedures such as non-invasive diagnostic tests and physical examinations. However, your health care provider must obtain express consent before beginning treatment or procedures with any substantial risks. Examples of care requiring such consent includes the following treatments:
- Surgical procedures
- Biopsies
- Chemotherapy
- Radiation
- Blood transfusions
- Vaccinations
- Treatment involving opioids
- Endoscopies
What Is the Difference Between Express Consent And Implied Consent?
Express consent is a clear, conscious, and intentional authorization to receive medical treatment. You may give it verbally or in writing. Implied consent is when you show your authorization through your actions, such as:
- Extending your arm to allow a practitioner to draw blood
- Sitting or lying on an examination table to undergo a physical examination
- Opening your mouth to accept a throat swab to test for strep throat
Both express and implied consent are valid only if the consent was informed. That means the healthcare professional provided all the appropriate information needed for you to make a decision.
If your doctor obtained express or implied consent but failed to review all the pertinent information about the treatment, they may have deprived you of your right to informed consent. If you subsequently suffer harm from the treatment, you may have grounds to file a medical malpractice lawsuit.
What Are the Exceptions To Needing Informed Consent?
In the event of a medical emergency, a doctor may perform a medical exam or provide emergency medical treatment without express or implied consent to the extent that the treatment is urgently necessary and the following circumstances apply:
- You are intoxicated.
- You are unconscious or otherwise unable to give consent.
- It is reasonable to assume you would consent to treatment if you had the capacity to do so.
Is Expressed Consent in Health Care Required for a Minor?
Express consent is required for minors. Consent for the treatment of minors must come from a parent, legal guardian, or a legally designated health care surrogate. If none of these parties is available, doctors may obtain consent from a stepparent, grandparent, adult sibling, or adult aunt or uncle.
Express Consent for Mental Health Treatment
Florida patients have a right to make informed decisions about whether to enter a mental health treatment program. Doctors are still required to obtain express and informed consent before commencing mental health treatment. If the patient is legally incompetent or otherwise incapacitated, the doctor can seek express consent from the patient’s legal guardian or guardian advocate.
Is Express Consent Required in Florida?
The Florida Medical Consent Law requires health care providers to ensure patients make informed decisions about medical care, but the law does not explicitly require consent to be expressed. If a health care provider obtains a valid signature on a written authorization form, it will typically be accepted by a Court that you gave express consent unless you can prove otherwise.
What Should Be Included in the Process of Obtaining Expressed Consent?
The Florida Medical Consent Law considers a patient informed when the health care provider has presented the following information in a way that would make a reasonable patient comfortable with undergoing the procedure:
- What should happen during the procedure
- What could happen during the procedure
- Reasonable alternative treatment options that may be available
- Any risks associated with the procedure
In addition, the physician must provide this information as a reasonable health care provider would. If the health care provider withholds information or coerces you to consent to treatment, the consent could be invalid, providing you with grounds for a medical malpractice lawsuit.
Can Expressed Consent Be Revoked?
You do have a right to revoke consent anytime before or even during treatment. Signing an authorization form or verbally consenting to treatment does not legally bind you to complete the treatment. The decision to proceed with medical treatment is always yours and yours alone unless you lack the capacity to make the decision yourself.
Even if you lack capacity, health care providers have a duty to find a suitable representative qualified to give consent on your behalf.
Can a Lack of Express Consent Constitute Medical Malpractice?
If a health care provider treated you without express and informed consent as required by the Florida Medical Consent Law, it is possible to file a medical malpractice lawsuit. You do not have a claim solely because there was lack of consent. To qualify as medical malpractice, you must prove all of the following:
- The health care provider owed you a duty of care.
- The provider breached the duty of care by failing to obtain informed consent.
- You suffered an injury stemming from the procedure.
- The injury would not have happened were it not for the breach of duty.
- The breach of duty is the primary cause of your injury.
Informed Consent and the Reasonable Standard of Care
The Florida Medical Consent Law requires health care providers to obtain consent according to the accepted standard among medical professionals with similar qualifications and experience. A provider may not perform treatment in the following circumstances:
- The patient refuses treatment.
- No reasonable patient would agree to treatment based on the information provided.
- A patient does not knowingly or intentionally give consent.
- The patient consents due to coercion or pressure.
- The doctor fails to provide all the pertinent information, such as the risks.
Is There a Time Limit To File a Claim for Lack of Express Consent?
The medical malpractice statute of limitations in Florida requires that you file your medical malpractice lawsuit within two years of the date your provider performed the unauthorized procedure or the date you discovered or should have discovered your injury. However, you cannot file your lawsuit more than four years after the doctor’s error, regardless of when you learned of your injury.
Although two years may seem like plenty of time, it does not mean you should wait to contact an experienced Florida medical malpractice attorney. The defendants may contest the discovery date and claim you should have discovered the injury earlier. If such an effort is successful, it could shorten the deadline. The court will dismiss your case if the statute of limitations expires before you file suit. You will lose your right to pursue compensation for your damages.
Our knowledgeable medical malpractice attorneys know how to fight these tactics and ensure your claim is filed on time.
Seek Legal Guidance for Your Healthcare Consent Concerns
If you are injured because a negligent health care provider treated you without your express consent, you may be eligible to recover substantial compensation through a medical malpractice lawsuit. Healthcare corporations are powerful entities with wealthy insurance companies. They won’t hesitate to invest significant funds to defeat your claim.
We have been protecting the rights of medical malpractice victims in Florida for more than 20 years, and we are dedicated to standing up for injured patients against powerful health care corporations and their insurance companies. We will invest our own funds to cover the cost of expert witnesses and litigation costs. We will gather evidence, file your claim on time, and navigate the legal process for you so you can focus on recovering from your injuries. We do all of this with no upfront costs to you. You only pay if we win.
With over $2.6 billion in settlements and verdicts recovered, you can trust that we have the experience, resources, and fortitude to take on large health care corporations. We are passionate, aggressive, and ready to employ all resources available to recover the compensation you deserve. Contact us online today to schedule your free consultation, or call us at (954) 467-6400.
