If you have ever visited the hospital for a surgery, medical procedure, or even a high-risk treatment plan, you were likely asked to sign a form called an “informed consent form.” However, few patients understand that this legal document means far more than simply “signing consent for treatment.”

West Virginia law defines “informed consent” as having the right to be told the truth before you consent, including the risk of a procedure, alternative treatment plans, and potential results of not doing the procedure at all.

If a doctor, surgeon, or hospital withheld that information, buried it in legal jargon, hurried you through the signing process, or did not disclose material facts, they may have violated the informed consent rules in West Virginia.

Informed Consent Explained  

“Informed consent” means you were told:

• The name of the procedure, and what it would do
• The risks, including known possible complications
• Safer or non-surgical alternatives, if they existed

Additionally, you were able to make the final choice without pressure or confusion. If any of these elements are missing or incomplete, the doctor or hospital may have obtained consent, but it was not an “informed” consent.

Signing a Hospital Form Does Not Replace True Understanding

Hospital patients are often surprised to discover that simply signing a hospital form does not get the doctor or hospital off the legal hook. Consent forms are full of legalese, and they say a lot that the average person does not really understand. However, the form itself does not automatically release the medical provider from the responsibility of actually telling you what you are agreeing to. Accordingly, courts will look at what you were told — not just what you signed.

Signing a form may show that you agreed to something, but if you did not have time to read it, were under the influence of medication or in severe pain, did not understand what the risk would be, were never told about the alternatives or the potential risks, or were lied to about the risks being “very rare” when they were common, you may not have actually been given informed consent.

When Does Lack of Informed Consent Become a Lawsuit?

Lack of informed consent becomes a legal issue when a material risk is not adequately explained to the patient, the risk becomes a reality, and the risk results in harm that the patient would not have accepted had they been told the truth.

For instance, if a surgeon fails to properly warn a patient of a major known risk of paralysis and the patient is now paralyzed because of that risk, the patient may have a case even if the surgery was “done correctly.” The issue is not the medical outcome, but the fact that the patient never got to make an informed decision.

“Bad Outcome” vs. Informed Consent: Is There a Difference?

Not every complication calls for a lawsuit, but a violation of consent is different. For example, if a doctor properly explained the known risks of a treatment and the patient accepted those risks, that is informed consent.

If a doctor did not mention the risk, or the doctor minimized the likelihood of it occurring when it was actually common, the patient’s ability to consent to that treatment is removed. Ultimately, the issue is autonomy — your right to decide what happens to your body.

Emergencies and Implied Consent in West Virginia

In a true medical emergency, where a patient is unconscious or otherwise unable to consent, doctors may proceed without permission in an effort to save the life. This is “implied consent.” Sometimes, though, hospitals make ordinary situations into “emergencies” after the fact, essentially to defend their failure to obtain consent in a timely manner.

Was it truly an emergency? That is often a contested legal question.

Can You Sue if You Would Have Said “No” to Treatment?

Yes. The legal test is not whether someone else would have consented, but whether you, the patient, would have.

If a patient later claims, “I would not have agreed to this if they had told me about that risk,” that may be enough to support a claim for compensation.

Informed Consent vs. Medical Malpractice: Are They the Same?

No. They can overlap, but they are not the same. Medical malpractice concerns how the treatment was performed. Informed consent is about whether you agree to that treatment. A claim can involve one or both.

For example, if a surgeon performed a procedure poorly and failed to warn you of its risks, both a medical malpractice and an informed consent claim may be involved.

Family Members May Be Able To Bring a Claim for the Patient

Family members may bring a claim on behalf of a patient who:

• Passed away as a result of the injury
• Is permanently incapacitated
• Was too medicated, sick, or confused to understand the consent process

If a loved one died because of a complication that was never properly warned about, the claim can become a wrongful death lawsuit in West Virginia.

Proof of Informed Consent or No Informed Consent

Evidence of informed consent (or the lack thereof) can include:

• Hospital records and pre-surgery notes
• The list of risks that were or were not included
• Witness statements, including nursing notes

Keep in mind that there may be other evidence that standard consent discussions were or were not documented.

Sometimes the strongest evidence of a lack of informed consent is what is missing. If a hospital cannot show that a meaningful consent discussion ever occurred, that can be powerful evidence of the absence of informed consent.

The Emotional Impact of Informed Consent Violations

Informed consent claims are especially painful because they involve the patient’s choice. Patients suffer emotionally when they later discover the truth was hidden from them or when a doctor privately knew the risks were high but did not convey that information. Families often say, “I would never have let them do this to my loved one if I had known.” This statement alone can be the crux of an informed consent claim.

You Had a Right To Know — Let Us Help You Get the Answers You Need

In West Virginia, every patient has the right to understand what they are agreeing to in medical treatment and to make an informed choice. When a doctor or hospital skips that step through pressure, confusion, or concealment, they rob a patient of the ability to make an informed decision about their own body and their future.

If you or a loved one were injured because you were never fully told the risks, the alternatives, or the consequences of what could happen, you are not alone, and you are not without options. Contact us today to discuss the specifics of your case.