Farmer, Cline & Campbell Personal Injury Lawyers | May 22, 2025 | Personal Injury

What Is the Difference Between Express and Implied Consent?

Understanding the difference between express and implied consent is important in both personal injury claims and everyday interactions. Consent plays a major role in determining whether certain actions are lawful or could expose someone to liability.

Express consent is when a person gives clear and direct permission for an action. This consent can be verbal or written, but it must leave no room for misunderstanding.

Examples of express consent include:

  • Signing a medical treatment authorization form
  • Verbally agreeing to participate in a high-risk activity, such as skydiving
  • Providing written permission for someone to enter your property

Express consent is straightforward because it is given explicitly. When provided, it typically limits a person’s ability to later claim they did not agree to the action.

Implied consent is not stated directly but is inferred from a person’s actions, behavior, or the situation. This type of consent is assumed in situations where a reasonable person would expect it based on the circumstances.

Examples of implied consent include:

  • Extending an arm for a blood pressure check at a doctor’s office
  • Participating in a contact sport where players accept the inherent risks
  • Allowing a neighbor to walk on your driveway to deliver a package without objecting

Implied consent can create legal gray areas because it relies on context rather than explicit words or signatures. This can make disputes about whether consent existed more complicated.

Consent is a key defense in many personal injury claims. If a defendant can prove that the plaintiff consented to the activity that caused their injury, it may limit or eliminate their liability.

For instance:

  • In sports injury claims, a defendant may argue that the plaintiff gave implied consent to physical contact by participating in the game.
  • In medical malpractice cases, a defendant may argue that the plaintiff gave express consent to the treatment, acknowledging the known risks involved.

When consent is in question, courts examine the facts closely. They check whether it was clearly given and whether it relates to the injury being discussed.

In medical cases, the difference between express and implied consent can affect liability and outcomes.

Express consent is usually required for invasive procedures, such as:

  • Surgeries
  • Medical treatments with significant risks
  • Participation in medical research or trials

Implied consent is more common in everyday healthcare settings, such as:

  • Routine exams and tests
  • Emergency situations where the patient is unconscious but needs immediate treatment to save their life

It is crucial for healthcare providers to understand the line between implied and express consent to avoid legal issues.

West Virginia follows a modified comparative negligence rule with a 50% bar. This means that if a plaintiff is found 50% or more at fault for their injuries, they cannot recover damages. Consent can play a role in these cases. If the plaintiff accepted known risks, it may lower or remove the defendant’s liability.

If a person takes part in a risky recreational activity and signs a waiver, they may not be able to claim damages. The waiver shows their agreement to the risks involved. If their actions showed they accepted certain risks, then comparative negligence might lower the damages they can get.

Protecting Your Rights After an Injury

If you are injured in a situation where consent is an issue, steps to protect your rights include:

  • Documenting all communications, including signed waivers or verbal agreements
  • Taking photos of the scene and collecting witness information
  • Consulting a personal injury attorney to evaluate how consent may affect your case

These steps can help clarify whether express or implied consent may impact your ability to pursue compensation.

Knowing the difference between express and implied consent is essential if you are injured in West Virginia. Express consent is clear and direct. Implied consent comes from actions or situations. Both types of consent can affect your personal injury claim. They help decide if you can seek damages. Working with an experienced attorney can help you understand your options and build a strong case.

Contact the Personal Injury Law Firm of Farmer, Cline & Campbell Personal Injury Lawyers for Help Today

For more information, please contact an experienced personal injury lawyer at Farmer, Cline & Campbell Personal Injury Lawyers, to schedule a free initial consultation today. We have convenient locations in Charleston, Beckley, Morgantown, WV.

Farmer, Cline & Campbell Personal Injury Lawyers – Charleston
746 Myrtle Rd
Charleston, WV 25314
(304) 346-5990

Farmer, Cline & Campbell Personal Injury Lawyers – Beckley
101 N Kanawha St, Suite 101
Beckley, WV 25801
(304) 252-5990 

Farmer, Cline & Campbell Personal Injury Lawyers – Morgantown
453 Suncrest Towne Centre Drive, Suite 300
Morgantown, WV 26505
(304) 225-5990