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West Virginia Informed Consent Laws

Posted in Medical Malpractice on November 9, 2020

When you have a health condition, you have the legal right as a patient to give or withhold your consent to undergo treatment. It is your right to carefully weigh all of the treatment options available with a physician before making your decision. If a doctor fails to provide all the information necessary for you to make an educated or informed decision, you may have grounds to file a medical malpractice claim in West Virginia for related damages.

What Is Informed Consent?

Informed consent is not a simple “yes” answer when a patient is asked if he or she wishes to undergo a type of treatment. The decision must be an educated and informed one, meaning the patient must have all the critical information about the treatment before agreeing. As a patient in West Virginia, you have a legal right to refuse treatment or a surgery you do not wish to receive, even if refusing the treatment results in your death. As long as the law considers you mentally competent, the treatments you receive or do not receive are up to you. You retain the legal right to give or withhold your informed consent.

Before you can give your informed consent to a medical treatment or trial, you must obtain all of the relevant information from the presiding physician or surgeon. Your doctor must list all of the known pros and cons of the treatment, as well as what may happen if you choose not to get the treatment. Your doctor must also list treatment alternatives, if available, including homeopathic medicine. Finally, your doctor must give you all of the possible health and safety risks associated with the treatment. Only after receiving all of this information, as well as answers to any questions you may have, are you able to give your informed consent as a patient. 

The Problem With Failing to Obtain a Patient’s Informed Consent

It is an encroachment of your rights as a patient to not receive all the information you need to give your informed consent to a surgery or treatment. Proceeding with the treatment without giving you all of the necessary information is a violation of your rights. It is also against the law for a doctor to go through with a procedure or treatment without obtaining your informed consent, in most cases. 

If you were mentally incompetent at the time the doctor obtained your informed consent, the consent is invalid. Incompetence could be due to emotional distress, intoxication, cognitive challenges, brain damage or lack of consciousness. This is the only situation in which a physician can proceed with treatment without your direct consent. The law assumes that any reasonable patient would approve procedures necessary to prevent a permanent disability or death in an emergency. 

Failing to obtain a patient’s informed consent is unfair for the patient. Failing to list all of the risks associated with a surgery, for example, could lead to an outcome that the patient would not have deemed worth the risk. If the patient had known of the risk of losing a limb, for instance, the patient might have gone with a less aggressive form of treatment. Failing to give a patient all of the facts before a course of treatment steals the opportunity of choosing his or her future from the patient. All patients in West Virginia have the right to give or withhold their informed consent. 

What to Do If You Did Not Give Your Informed Consent to Treatment

If you believe a medical professional failed to give you all of the crucial information about a procedure or failed to obtain your informed consent, and you have damages due to the procedure in question, you may be eligible for compensation. The doctor or hospital may owe you compensation for your damages. Contact a medical malpractice attorney near you if you feel a health care practitioner has violated your rights as a patient. We can help you understand your legal options.