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Pennsylvania Supreme Court: Only Doctors Can Obtain Informed Consent

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Just saw this on twitter: http://www.postschell.com/publications/1386-pa-supreme-court-ruling-only-doctors-can-obtain-informed-consent



A June 20, 2017, holding by the Supreme Court of Pennsylvania will require physicians across the Commonwealth of Pennsylvania to change their practices for obtaining informed consent from patients. Physicians now must personally obtain informed consent and must personally answer their patients’ questions. Additionally, communications between physicians’ qualified staff members and patients will no longer be admissible at trials as to the issue of whether the physicians obtained informed consent from their patients. As the dissent noted, “today’s decision will have a far-reaching, negative impact on the manner in which physicians serve their patients. For fear of legal liability, physicians now must be involved with every aspect of informing their patients’ consent, thus delaying seriously ill patients access to physicians and the critical services that they provide.”

The details:



Megan L. Shinal had a recurrent non-malignant tumor in the pituitary region of her brain. Id. at *3. She consulted with Dr. Steven A. Toms regarding removal of the non-malignant tumor. Id. Dr. Toms was the Director of the Department of Neurosurgery at Geisinger Medical Center and was employed by the Geisinger Clinic as a neurosurgeon. Id. at *2-3. 

On November 26, 2007, Dr. Toms met Mrs. Shinal for her first and only pre-surgical appointment with him. Id. at *3. Dr. Toms “reviewed with Mrs. Shinal the alternatives, risks, and benefits of total versus subtotal resection, and shared with Mrs. Shinal his opinion that, although a less aggressive approach to removing the tumor was safer in the short term, such an approach would increase the likelihood that the tumor would grow back.” Id. at *4. He also “advised Mrs. Shinal that total surgical resection offered the highest chance for long term survival.” Id. By the end of the appointment, Mrs. Shinal had decided to proceed with surgery, but the surgical approach had not yet been determined. Id.   

On December 19, 2007, Mrs. Shinal had a telephone conversation with Dr. Toms’ physician assistant. Id. Mrs. Shinal “asked the physician assistant about scarring that would likely result from the surgery, whether radiation would be necessary, and about the date of the surgery.” Id. at *4-5. The physician assistant “also answered questions about the craniotomy incision.” Id. at *5.

On January 17, 2008, Mrs. Shinal presented to the Geisinger Medical Center’s Neurosurgery Clinic where she met with Dr. Toms’ physician assistant. Id. “The physician assistant obtained Mrs. Shinal’s medical history, conducted a physical, and provided Mrs. Shinal with information relating to the surgery. Mrs. Shinal signed an informed consent form.” Id. The informed consent form “did not address the specific risks of total versus subtotal resection.” Id. at *5 n.1.

On January 31, 2008, Mrs. Shinal presented to Geisinger Medical Center where Dr. Toms performed an open craniotomy total resection of the brain tumor. Id. at *5. During the operation, Dr. Toms perforated Mrs. Shinal’s carotid artery, resulting in hemorrhage, stroke, brain injury, and partial blindness.Id.

On December 17, 2009, Mrs. Shinal and her husband filed a medical malpractice action in the Court of Common Pleas of Montour County. Id. at *5-6. The Complaint contained a cause of action for lack of informed consent. Id. at *6. According to the Complaint, “Dr. Toms failed to explain the risks of the surgery to Mrs. Shinal or to offer her the lower risk surgical alternative of subtotal resection of the benign tumor, followed by radiation.” Id. at *6.

At trial, the court instructed the jurors that they could consider both the information that Dr. Toms provided to Mrs. Shinal and the information that Dr. Toms’ physician assistant provided to Mrs. Shinal in determining whether Dr. Toms had satisfied his duty to obtain informed consent from Mrs. Shinal for the January 31, 2008 surgery. Id. at *11-12. 

The jury returned a verdict in favor of Dr. Toms. Id. at *12. The Shinals moved for post-trial relief, arguing inter alia the trial erred in instructing the jurors that they could consider any relevant information communicated to Mrs. Shinal by Dr. Toms’ physician assistant. Id. The trial court denied post-trial relief, and the Superior Court affirmed. Id. The Shinals appealed to the Supreme Court of Pennsylvania. Id. at *2.


The Supreme Court's holding:


“Thus, we hold that a physician may not delegate to others his or her obligation to provide sufficient information in order to obtain a patient’s informed consent. Informed consent requires direct communication between physician and patient, and contemplates a back-and-forth, face-to-face exchange, which might include questions that the patient feels the physician must answer personally before the patient feels informed and becomes willing to consent. The duty to obtain the patient’s informed consent belongs solely to the physician. Bulman and Foflygen, upon which the lower courts and Dr. Toms relied, are Superior Court cases which pre-date Valles and the MCARE Act. To the extent that those decisions permit a physician to fulfill through an intermediary the duty to provide sufficient information to obtain a patient’s informed consent we overrule them. We reverse the Superior Court’s order affirming the trial court’s denial of the Shinals’ motion for post-trial relief, and we remand for a new trial consistent with this opinion.” 


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4 minutes ago, rev ronin said:

What is the MCARE act?  Is it unique to Pennsylvania?

It is indeed unique to Pennsylvania. It stands for "Medical Care Availability and Reduction of Error". 

Via Harvard Law:


MCARE requires that participating providers and hospitals carry a minimum of $500k in coverage per occurrence or claim. (We will get back to what exactly counts as an “occurrence.”) MCARE also refers to a special fund within the State Treasury that aims to “ensure reasonable compensation for persons injured due to medical negligence.” The MCARE fund pays claims in excess of the $500k in coverage that participating health care providers and hospitals are already required to buy themselves to insure against medical professional liability actions.


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  • Moderator

So what about all the procedures that are done by non-physicians.....

can only the doc get consent?


Honestly I think things like brain surgery and major surgery in general should get IC done by the person doing them.


In IR I always got my OWN IC and explained items to the patient in layman terms... hospital started to question this, but then JACHO (I think) came out with the standard that the person doing the procedure needed to be getting the consent - seems very logical to me 

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