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On June 20, 2017, the Pennsylvania Supreme Court ruled in Shinal v. Toms that the duty to obtain informed consent is the physician’s non- delegable duty. The case involved a surgical procedure that resulted in hemorrhage, stroke, brain injury and partial blindness due to perforation of the carotid artery during the surgery. During the trial the jury was allowed to consider information that was provided to the patient by members of the surgeon’s staff. The trial resulted in a defense verdict. The appeal that followed claimed it was an error of law to permit the jury to consider information that was not provided by the surgeon.
The majority’s opinion was based upon its interpretation of The Medical Care Availability and Reduction of Error (MCARE) Act’s definition of informed consent. Specifically, according to the Act: (a) Duty of physicians. – Except in emergencies, a physician owes a duty to a patient to obtain the informed consent of the patient or the patient’s authorized representation prior to conducting the following procedures: (1) Performing surgery, including the related administration of anesthesia.
The Supreme Court ruled, “Without direct dialogue and a two-way exchange between the physician and patient, the physician cannot be confident that the patient comprehends the risks, benefits, likelihood of success and alternatives. Only by personally satisfying the duty of disclosure, may the physician ensure that consent is truly informed.” The opinion further states, “Under the plain language of (MCARE) the duty to obtain a patient’s informed consent for the several enumerated procedures, including surgery, belongs to the physician. Nothing in the plain language of the act suggests that conversations between the patient and others can control the informed consent analysis or can satisfy the physician’s legal burden.”
What practical implications does this decision raise for health care providers and medical malpractice attorneys? For health care providers this decision has significant implications. The reality of the practice of medicine is that many responsibilities are delegated to physician’s assistants and nurse practitioners. In reviewing hospital policies, procedures, medical staff bylaws and privileges related to informed consent, many of the current guidelines do not comply with the law.
From a medical malpractice perspective, the case that is premised upon a failure to obtain informed consent should consider the physician’s duty and the institutional systems in place to assure that compliance with the law is met. I am certain that we will see legislative efforts to lift what is now perceived as a burden on physicians. The Hospital Health System Association of Pennsylvania on behalf of the Pennsylvania Medical Society, Pennsylvania Society of Physician Assistants and the Pennsylvania Coalition of Nurse Practitioners has made this promise to its members. For more information on the health care provider’s interpretation of the significance of this decision please go to: https://www.haponline.org/
If you have been the victim of medical malpractice, seek the counsel of an experienced attorney.