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In Pennsylvania, Your Doctor Must Personally Obtain Your Informed Consent

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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.

Informed Consent

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.

Background

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.

The aggressive attorneys at Zwick Law are standing by to provide you with the legal advice and representation that you need and deserve.  We offer personalized attention and we work tirelessly to maximize the value of our clients’ injury claims.  Our experienced medical malpractice attorneys are always here to discuss your case and provide you with the peace of mind you desrve.

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.[1]

 

 

[1] Disclaimer: The use of the Internet, Facebook and/or any other form of social media communication with the firm or any individual member of the firm does not establish an attorney-client relationship.  Time-sensitive information should be directed immediately to the office of Zwick Law at (814) 371-6400.

 

FULL TORT v. LIMITED TORT INSURANCE COVERAGES

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If you have been involved in a motor vehicle accident, the difference between full tort and limited tort insurance coverage is a big one.  Tort coverage is one of the first topics that we discuss with clients and prospective clients when they come into our DuBois or Brookville office for a free and confidential consultation to discuss a personal injury claim resulting from an automobile accident.  In most instances, we find that many injured people either (1) do not know the difference between full tort and limited tort coverages, or (2) do not know which tort coverage they selected when purchasing their automobile insurance policy.  The difference, in most cases, is very significant.

full tort limited tort

In Pennsylvania, insurance companies offer their customers several options when selecting automobile insurance coverages.  One major option is: do you want full tort coverage or limited tort coverage.  It is very important to know the difference between the two options when making your decision.  If you are involved in an auto accident, and you select full tort coverage, then you are permitted to pursue and recover money for all of your injuries, which includes non-economic injuries and damages – i.e., pain and suffering, mental and psychological anguish, inconveniences, loss of enjoyment of daily life activities, etc.  However, if you select limited tort coverage, you forfeit and lose the ability to pursue and receive compensation for these non-economic damages.  This is a significant limitation.

Typically, insurance companies offer small and insignificant discounts on monthly insurance premiums for your selection of limited tort coverage.  While the selection of limited tort coverage can seem appealing at first, because it could immediately save you a few dollars on your monthly premium payment, choosing limited tort coverage may cost you significantly, both financially and legally, should you or a covered family member ever be involved in an automobile accident.

The Pitfalls of Limited Tort Coverage

Limited tort coverage permits a person injured in an automobile accident to only recover for out of pocket medical bills, wage loss, automobile repair costs, and other actual monetary or economic losses.  In other words, if you select limited tort coverage, you are giving up your right to pursue damages in a future personal injury case for pain and suffering and other similar damages before an accident ever occurs.

There is a limited exception to this general rule, which permits a person with limited tort coverage to pursue a claim for pain and suffering and other non-economic damages that are sustained in an automobile accident, if the person sustained bodily injuries that are deemed “serious.”  Serious injuries, however, are not always clearly defined or easily established.  Under Pennsylvania law, the term “serious injury” is generally described as “a personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.”  In the majority of cases, however, difficulty arises in differentiating between a serious injury and a non-serious injury – which is anything but clear under the law.

The Benefits of Full Tort Coverage

At Zwick Law, we highly encourage and recommend that all Pennsylvania residents and drivers maintain full tort coverage on their automobile insurance policies.  The small amount of money that you could save on your monthly insurance premiums with limited tort coverage is slight compared to the costs that you could incur if you are involved in a vehicle accident.

In many cases, injuries that result from an automobile accident are not completely known until weeks, months, or even years after an accident.  Health and medical complications often arise  well after the accident and – without full tort coverage – you could be left responsible for treating injuries that resulted from a motor vehicle accident that were not your fault.  Full tort insurance coverage is one of the best forms of protection for your future and the future of cherished family members.  If you are involved in a serious automobile accident, it is very likely that you will lose more than you may have saved in reduced monthly premium payments.

So, when the time comes to purchase a new automobile insurance policy, or when you have an opportunity to review and change the terms of your existing policy with your insurance agent, discuss your tort coverage selection with your agent.  The bottom line is, if you want to ensure that you have preserved your right to pursue the full extent of your injuries and damages in a personal injury claim after a vehicle accident, you should make sure that you have full tort coverage on all of your automobile insurance policies.

For questions relating to full tort and limited tort options, please contact Matthew R Zwick, partner of Zwick Law, at (814) 371-6400 or mrz@zwick-law.com, to schedule a legal consultation.  At Zwick Law, we’re always here for you.[1]

 

[1] Disclaimer: The use of the Internet, Facebook and/or any other form of social media communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Time-sensitive information should be directed immediately to the office of Zwick Law at (814) 371-6400.