What is “informed consent?”

Informed consent means a physician must inform the patient of all material risks, complications, facts, and benefits involved in any proposed, non-emergency surgical treatment. This allows the patient to make an informed decision about whether to undergo surgical intervention.

Recent PA Supreme Court Decision

The Supreme Court of Pennsylvania recently decided that doctors in Pennsylvania have an affirmative duty to obtain their patients’ informed consent. This duty is non-delegable and only discharged when the physician personally obtains the patient’s consent. The Supreme Court issued this ruling in Shinal v Toms, 162 A.3d 429 (Pa. 2017).

PA Law on Informed Consent in Medical Malpractice Lawsuits

Under Pennsylvania law, before a physician conducts any proposed, non-emergent treatment on a patient, the patient must receive information about the nature of the proposed procedure, as well as the expected and possibly unexpected risks and results. Generally, in Pennsylvania, similar to the majority of other jurisdictions, a physician has an affirmative duty to advise a patient of the facts, risks, complications, and alternatives to a procedure. This duty is required under Pennsylvania’s Medical Care Availability and Reduction of Error (MCARE) Act. With this information, a patient can make an educated or “informed” decision regarding the available options and/or alternatives to medical procedures.

Supreme Court’s Majority Opinion

According to the majority opinion of the Supreme Court in Shinal, the physician must personally give the aforesaid information and obtain the patient’s consent. In other words, unless the treating physician provides the procedure-related information to a patient, the duty to adequately inform is not discharged.

Background of Case

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 denied breaching his duty to inform Mrs. Shinal. He countered that in a consultation 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 Mrs. Shinal’s carotid artery and optic nerve.

Dr. Toms 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 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, in the opinion of the Supreme Court, the trial court judge was wrong in his instructions to the jury.

Legal Assistance for Doctor Hospital Lawsuit

For questions relating to an medical malpractice issue, contact Matthew R Zwick, partner of Zwick Law, at (814) 371-6400 or mrz@zwick-law.com, to schedule a legal consultation and free case analysis.  At Zwick Law, we’re always here for you.

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