CCMS Medicine Fall 2017 - 10

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Pa. Supreme Court Ruling Impacts How
Physicians Obtain Informed Consent
BY THE PENNSYLVANIA MEDICAL SOCIETY

n a June 20, 2017 decision regarding the Medical Care
Availability and Reduction of Error (Mcare) Act's informed
consent requirement, the Pennsylvania Supreme Court ruled
that a physician may not delegate to others his or her obligation
to provide sufficient information in order to obtain informed
consent - the duty to obtain a patient's informed consent is a nondelegable duty owed by the physician conducting the surgery or
treatment.

The Court found no provisions in the Mcare Act allowing for
information given by a physician's subordinates to satisfy the
physician's burden to obtain informed consent.

In Shinal v. Toms, a patient alleged that her surgeon failed to
provide information required to obtain informed consent prior
to the removal of a non-malignant brain tumor. The trial court
provided instructions to the jury, permitting them to consider
information provided by the surgeon's physican assistant as part of
the informed consent process. The trial court subsequently found
in favor of the surgeon.

Reversing the trial court and Superior Court's judgment in
favor of the defendant surgeon, the Supreme Court has remanded
the case for a new trial.

The patient later appealed to the Superior Court, challenging
the trial court's instruction. The Superior Court agreed with the
trial court's instruction and held that information provided by a
surgeon's qualified staff could be considered part of the informed
consent process.
The Pennsylvania Medical Society (PAMED) - with support
from the American Medical Association (AMA) - filed an amicus
brief of the Superior Court's holding that information provided
by a physician assistant or other qualified assistant can be used to
obtain a patient's informed consent for surgery.
Following arguments before the Pennsylvania Supreme Court
in November 2016, the Court issued its decision in the matter
on June 20, 2017. The Pennsylvania Supreme Court reversed the
Superior Court's order affirming the trial court's jury instruction.
The duty to obtain a patient's informed consent is a nondelegable duty, the Pennsylvania Supreme Court ruled, belonging
solely to the physician conducting the surgery or treatment.

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Furthermore, the Court held that a physician cannot be
confident that a patient comprehends the risks of and alternatives
to treatment without direct dialogue. The physician personally
satisfying the duty of disclosure ensures that the patient's consent is
truly informed.

The decision in Shinal v. Toms could have significant
ramifications for Pennsylvania physicians. With this decision, the
Pennsylvania Supreme Court holds that physicians alone have the
duty to provide patients with the sufficient information required
to obtain informed consent. Thus, Pennsylvania physicians can
seemingly no longer rely upon the aid of their qualified staff in the
informed consent process.
PAMED members can access member-only resources at www.
pamedsoc.org/informedconsent, including a Quick Consult fact
sheet and brief video that summarize a physician's obligations
under Pa.'s informed consent law, discuss potential legal risk, and
provide recommendations. Not a member of PAMED? You can
join PAMED and your county medical society online at www.
pamedsoc.org/join or by calling PAMED's Knowledge Center at
855-PAMED4U (855-726-3348).

http://www.chestercms.org http://www.pamedsoc.org/informedconsent http://www.pamedsoc.org/join

CCMS Medicine Fall 2017

Table of Contents for the Digital Edition of CCMS Medicine Fall 2017