The idea of “consent” comes up frequently in the law. Criminal law, contract law, property law, and personal injury law (tort law) all have situations in which consent can play a part.

In tort law, a medical malpractice claim can hinge on consent — or more accurately, it can hinge on informed consent. When health care providers fail to obtain informed consent, they risk lawsuits for medical malpractice.

Health care providers are liable for medical malpractice when they fail to provide reasonable medical care in a given circumstance. Juries and malpractice insurers find the question of consent to be incredibly difficult to answer. As a result, you and your lawyer will often need to break the question down into parts.

Who Can Commit Medical Malpractice?

Any health care provider can commit medical malpractice, including:

  • Doctors
  • Dentists
  • Psychiatrists
  • Nurses
  • Hospitals, clinics, and medical groups
  • Physical and mental therapists
  • Medical laboratories
  • Pharmacists

You can hold these professionals responsible for their errors, as well as any errors committed by their offices. For example, if a doctor’s office emails you the wrong test results, the doctor is responsible, even if a secretary is the one who sends out the emails.

What is Medical Malpractice?

Health care providers commit medical malpractice when they provide unreasonably deficient care for a given set of circumstances. 

Deficient care falls into three general categories, which include:

  • Diagnosis errors, in which the medical professional misdiagnoses or fails to diagnose an injury or condition
  • Treatment errors that are committed when treating an injury or condition
  • Communication errors in which the health care provider miscommunicates or fails to communicate with you about your medical problem or treatment

Express and implied consent insulate health care providers from communication errors, but they do not protect them from liability for diagnostic errors or treatment errors.

Health care providers must obtain informed consent unless you need emergency medical treatment to prevent death, immediate harm, or serious harm. If the patient cannot give informed consent, the health care provider must take reasonable steps to identify someone who can give informed consent.

For example, if a patient is unconscious, a doctor might seek informed consent from the patient’s spouse before providing treatment.

To qualify as informed consent, the health care provider must explain:

  1. The nature of the treatment or procedure
  2. The burdens, benefits, and risks of the treatment

These must be discussed before you consent to the treatment or procedure. So your consent cannot occur before the discussion takes place. Instead, the words or actions that manifest consent must occur after the discussion about the procedure.

Express consent consists of a written or oral authorization to a medical procedure. To qualify as express consent, the reasonable interpretation of the written or spoken words must manifest agreement.

Some of the words that provide express consent include:

  • Authorize
  • Yes
  • Agree
  • Consent
  • Approve

Most medical providers use written consent forms to provide evidence of express consent. The medical provider will usually require the patient to sign the form before proceeding with the treatment. This signed form provides express consent for the treatment.

If the patient or patient’s representative did not provide express consent, consent might still be implied by the circumstances. Implied consent is usually less clear than express consent since it is nonverbal. But you are usually understood to give implied consent if the reasonable interpretation of your actions would suggest that you consented to the treatment.

A few examples of implied consent include:

  • Nodding, gesturing, or giving a thumbs up
  • Making an appointment for the treatment and then appearing for your appointment
  • Preparing for the treatment, such as putting on a hospital gown and laying on a gurney
  • Telling a relative or friend that you plan to undergo treatment

Proving implied consent can be tricky because nonverbal communication can have multiple interpretations. Nonverbal communication can also create problems if you change your mind. Preparing for the treatment might manifest consent, but shaking your head when the doctor asks if you’re ready might withdraw your consent.

Some people cannot legally consent to a medical procedure. 

According to Maryland’s Health Care Decisions Act, a person must be able to:

  1. Understand the nature, extent, and consequences of medical treatment
  2. Make a rational evaluation of the risks, benefits, and burdens of the treatment
  3. Communicate a decision to the provider

A person must be able to perform all three steps to consent to medical treatment. Someone with severe brain injuries who cannot understand the proposed treatment cannot give informed consent.

Additionally, the law presumes that some people cannot give informed consent, such as:

  • Minors
  • People with intellectual disabilities
  • People under the influence of drugs or alcohol

For patients who fall into any of these categories, a medical provider must seek out someone legally responsible for the patient to give informed consent. A parent, spouse, or other relative can often give informed consent if the patient cannot.

When a health care provider obtained informed consent, whether express or implied, the health care provider is understood to have provided reasonable communication. In other words, informed consent disproves a communication error. As a result, informed consent will usually provide an effective defense against medical malpractice claims.

But not every type of consent is informed consent. If a health care provider left out an important side effect or risk when discussing the procedure, you might not have given informed consent. For example, if a doctor failed to warn you about addiction before prescribing opiates, you might still have a claim for opioid injuries, despite accepting the prescription.

Also, informed consent cannot insulate a health care provider against diagnostic errors or treatment errors. If the procedure goes wrong, you may have a claim against the provider for a treatment error. If the procedure goes perfectly, but your condition is not cured, you may have a claim against the provider for a diagnostic error.

This can give you some insight into the complexity of medical malpractice claims. This is one of the reasons why you might need an experienced medical malpractice lawyer and expert witnesses to prove a medical error has occurred. Consent is just the tip of the iceberg. A health care provider might be liable for your injuries, even though you signed a consent form.