What is “informed consent?” Informed consent means that a physician must inform the patient of all material risks, complications, facts and benefits involved in any proposed, nonemergency surgical treatment, so that the patient can make an informed decision about whether to undergo surgical intervention.
The Supreme Court of Pennsylvania recently decided that doctors in Pennsylvania have an affirmative duty to obtain their patients’ informed consent, and this affirmative duty is non-delegable. As such, this duty is only discharged when the physician personally obtains the client’s consent. The Supreme Court issued this ruling in Shinal v Toms, 162 A.3d 429 (Pa. 2017).
Under Pennsylvania law, before a physician conducts any proposed, non-emergent treatment on a patient, the patient must receive information concerning the nature of the proposed procedure, as well as the expected, and the possibly unexpected, risks and results. Generally speaking, in Pennsylvania, similar to the majority of other jurisdictions, a physician has an affirmative duty to advise a patient of the facts, risks, and complications of, and alternatives to, a procedure. This duty is required under the Pennsylvania’s Medical Care Availability and Reduction of Error (“MCARE”) Act. It is only with this information, that a patient can make an educated or “informed” decision regarding the available options and/or alternatives to medical procedures.
According to the majority opinion of the Supreme Court in Shinal, the aforesaid information must be given, and the consent obtained, by the physician personally (rather than by a physician assistant, nurse or medical aide). In other words, unless the procedure-related information is provided to a patient by a treating physician, the duty to adequately inform is not discharged.
Mrs. Shinal and her husband sued the defendant, Dr. Toms and Geisinger Clinic in a medical malpractice suit. Mrs. Shinal, who had been diagnosed with a recurrent non-malignant tumor around her brain, alleged that Dr. Toms failed to properly inform her of the risks associated with a surgery to remove the tumor.
Dr. Toms, denying that he had breached his duty to inform Mrs. Shinal, countered that in a consultation he conducted with the Shinals on November 26, 2007, he had explained the risks of the different approaches to the surgery. These risks included possible damage or injury to Ms. Shinal’s carotid artery and optic nerve.
According to Dr. Toms, he felt that Mrs. Shinal had understood the risks and wanted him to try and totally remove the tumor which, though risky, would give her a better shot at long-term survival. Besides, Mrs. Shinal had a telephone conversation with Dr. Toms’ physician assistant (“PA”) on December 19, 2007, and the PA had gone through the risks of the procedure with her again at that time.
On January 31, 2008, Mrs. Shinal had an operation to remove the tumor, during which Dr. Toms perforated her carotid artery. As a result of the perforation, Mrs. Shinal sustained a hemorrhage, stroke, brain injury and partial blindness. This medical malpractice lawsuit ensued shortly thereafter.
Jury Instruction: Informed Consent
The Supreme Court was invited to overrule the decisions of the trial court and the Superior Court, both of which exonerated the Defendant. The reasoning at the lower court and Superior Court had been that the Defendant was not obligated to personally inform the Plaintiff of all of the facts, risks, and complications of the procedure. The Superior Court further ruled that the Defendant doctor could be assisted in this duty by his PA.
The trial court judge, before the finding of the jury, directed that the jury could consider any information provided to Mrs. Shinal by “any qualified person” working as an assistant to Dr. Toms.
However, the Supreme Court, with a majority of four justices concurring, held that a doctor was personally obligated to inform a patient of the risks and benefits of the procedure, as well as obtain her informed consent to proceed with the proposed treatment. The case was, therefore, ordered to be retried because, as in the opinion of the Supreme Court, the trial court judge was wrong in his instructions to the jury.
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