Practice of Medicine


Informed Consent-State of Virginia

By Sean Byrne, Esq.

May 13, 2015

Informed Consent is a process of communication by which a patient is informed of risks, benefits, and alternatives of medical treatment and expresses an understanding and agreement to undergo the treatment. It is not simply the act of having a patient sign a consent form. The form serves as confirmation that the process has taken place.

The Virginia statutes specify that a practitioner shall present information relating to the patient’s care to a patient or his legally authorized representative in understandable terms and encourage participation in the decisions regarding the patient’s care and shall refer to or consult with other healthcare professionals if so indicated. Furthermore, the law requires that the practitioner accurately inform the patient or his legally authorized representative of his medical diagnoses, prognosis, and prescribed care without deliberately making a false or misleading statement regarding the practitioner’s skill or the efficacy or value of a medication, treatment, or procedure prescribed or directed by the practitioner in the treatment of any disease or condition.

Before surgery or any invasive procedure is performed, informed consent shall be obtained from the patient in accordance with the policies of the healthcare entity. Practitioners shall inform patients of the risks, benefits, and alternatives of the recommended surgery or invasive procedure that a reasonably prudent practitioner in similar practice in Virginia would tell a patient.

1.  In the instance of a minor or a patient who is incapable of making an informed decision on his own behalf or is incapable of communicating such a decision due to a physical or mental disorder, the legally authorized person available to give consent shall be informed and the consent documented.

2.  An exception to the requirement for consent prior to performance of surgery or an invasive procedure may be made in an emergency situation when a delay in obtaining consent would likely result in imminent harm to the patient.

3.  For the purposes of this provision, "invasive procedure" means any diagnostic or therapeutic procedure performed on a patient that is not part of routine, general care and for which the usual practice within the healthcare entity is to document specific informed consent from the patient or surrogate decision maker prior to proceeding.[1]

Careful attention should be given to those situations in which a minor is deemed an adult for the purpose of consenting to certain treatments. In Virginia, patients under the age of 18 may consent to treatment for themselves for the following conditions:

  • sexually transmitted diseases or any reportable infectious or contagious disease
  • birth control, pregnancy, or family planning (except sterilization), and
  • outpatient care, treatment, or rehabilitation for substance abuse, mental illness or emotional disturbance.[2]

If you have any questions about the process of informed consent, please contact your designated MagMutual Risk and Patient Safety Consultant or call the MagMutual Patient Safety Institute at 800-282-4882.

Author: Sean Byrne is a medical malpractice attorney with the firm of Hancock, Daniel, Johnson & Nagle, P.C., Richmond, Virginia.

[1] 18VAC85-50-178

[2] Va. Code §54.1-2969



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