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Only Physicians May Obtain a Patient’s Informed Consent

Written by: on July 10, 2017 | Category: Blog | Tags:

A majority of the Pennsylvania Supreme Court recently ruled that a physician — and only a physician — may obtain a patient’s informed consent prior to performing a medical procedure.

In Shinal v. Toms, Megan Shinal underwent surgery with Dr. Steven Toms to remove a recurrent non-malignant brain tumor. Prior to surgery, Dr. Toms met with Ms. Shinal, who agreed that he would determine during the surgery whether to remove the entire tumor, or perform a partial resection. However, he did not determine the surgical approach to be used in his discussion with Ms. Shinal.

Although Dr. Toms conducted the initial consultation with Ms. Shinal, it was his physician assistant who later informed her of the risks of surgery, and obtained her consent.  Unfortunately, Ms. Shinal’s surgery was complicated by a carotid artery perforation, which left her partially blind.

At trial, Ms. Shinal argued that her consent to the surgery was invalid because it was not obtained by Dr. Toms, and because she was never advised of the specific risks of total versus partial resection of the tumor.  However, the Court instructed the jury that they could consider any relevant information which was communicated to Ms. Shinal by the physician assistant to satisfy the informed consent requirements.  The jury returned a verdict in favor of Dr. Toms.  Ms. Shinal appealed to the Superior Court, which affirmed the Trial Court’s ruling.

On appeal, the Supreme Court ruled 4-3 to grant Ms. Shinal’s request for a new trial.  Writing for the majority of the Court, Justice Wecht stated: “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.”

In light of the Court’s decision, physicians must ensure that they themselves provide the patient with sufficient information concerning the risks and benefits of a proposed course of treatment in order to enable the patient to make an informed decision about the treatment. To substantiate informed consent, a physician has a duty to inform the patient about the risks, benefits, likelihood of success, and available alternatives.

Attorney Graig Schultz is a member of Gross McGinley’s Medical Malpractice Defense Group, representing hospitals, physician practices, and individual medical professionals in liability claims.

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