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Can I be given an experimental treatment without my consent?

Western medicine, both in the U.S. and abroad, has a dark history of experimenting with medical treatments and procedures on people without their consent. In most cases, the people being experimented on were disadvantaged or captive in some way, like individuals in mental institutions (Barrett v. State of New York, 378 N.Y.S.2d 946), black men used in the Tuskegee experiments, infants in the NICU (Burton v. Brooklyn Doctors Hospital, 452 N.Y.S.2d 875), and Jews in German concentration camps.

From these horrors have arisen strict requirements involving informed consent for experimental procedures or treatments. Informed consent means that the doctor has a discussion with you regarding all the possible risks and benefits of the treatment or procedure you are about to undergo. Your doctor cannot delegate this task to another health care professional, and must disclose to you:

  • Your diagnosis
  • The nature and purpose of your treatment
  • The risks and benefits of the treatment
  • Any alternative options to your treatment, and the risks and benefits associated with those
  • The risks and benefits of doing nothing

You, as the patient, have the right and responsibility to ask questions and ask for clarity on any matter you don't understand. You are not expected to be able to interpret complicated medical science or jargon.

There is one exception to informed consent for experimental treatments, and that is emergency situations. If you are in a critical state and there is an experimental treatment or procedure that can be administered to save you, a physician is allowed to try it without your consent if the public knows it's being researched, if a special committee is keeping track of outcomes, and provisions are in place to stop treatment immediately if need be.

At Bouchillon, Crossan & Colburn, L.C., our attorneys have more than 35 years dedicated to giving clients the attention, advice, support and empowerment they need to effectively meet their goals. We are committed to the principle that all persons shall have equal justice under the law. If you or a loved one has been injured and is seeking a qualified personal injury attorney, contact our Huntington, West Virginia office to speak with an attorney about your case, or call 304-523-8451.

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