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Pa. Supreme Court Ruling Impacts How Physicians Obtain Informed Consent

What Physicians Need to Know about Informed Consent

Get member-exclusive resources on informed consent. PAMED’s video and Quick Consult publication:

  • Summarize a physician’s obligations under Pa.’s informed consent law
  • Discuss potential legal risk
  • Provide recommendations

In a decision regarding the Medical Care Availability and Reduction of Error (Mcare) Act's informed consent requirement, the Pennsylvania Supreme Court has 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 non-delegable duty owed by the physician conducting the surgery or treatment.

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 physician assistant as part of the informed consent process. The trial court subsequently found in favor of the surgeon.

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 non-delegable duty, the Pennsylvania Supreme Court ruled, belonging solely to 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.

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.

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 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's Legal Resource Center

PAMED's Legal Resource Center provides quality, timely legal advocacy and resources for member physicians who practice in Pennsylvania. You'll find:

  • News on PAMED's strong legal advocacy in the courts, legislature, and state government agencies
  • Resources about laws and regulations that impact the practice of medicine, in the form of frequently asked questions (FAQs), legal briefs, and more.

Get details at www.pamedsoc.org/LegalResourceCenter.

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lucyndiam@comcast.net

In my opinion a PA or anyone who isn't doing or hasn't done the surgery should not be permitted to discuss the complications risks etc with the patient. The responsibility should belong to the person performing the procedure. We hesitate to give interns and residents responsibility yet give it to persons who are not any more experienced.

Friday, August 19, 2016 6:28:38 PM

drsalmom

Can you comment on whether the ruling mandates that the specific physician performing the procedure must obtain the informed consent, or whether another physician in the same practice and with equivalent expertise can do so? (For example, can a gastroenterologist obtain consent for endoscopy which may then be performed by another gastroenterologist in the same group?)

Friday, July 7, 2017 9:43:33 AM

threeandme80

So the doctor doing the work has to do the work. Seems fair to the patient and this is how things should be done. Sure it may "slow" things down for that discussion - but too many patients get operations completed and really have no idea of what was done. With electronic records printed off being of little help in determining what surgery was completed "ICD 10 codes with Other specified postprocedural states" Doctors should be doing their own work - should have been all along.

Tuesday, July 25, 2017 8:41:48 PM

jeffwirick

From PAMED General Counsel Angela Boateng: Thank you for your comment. Physicians have long recognized their duty to provide patients with information regarding informed consent. And, as you note, most physicians would personally provide this information; however, it was not uncommon for other qualified staff to assist a physician in providing the requisite information or answering follow-up questions a patient may have had—the Medical Practice Act and other professional regulations permitted this level of assistance. The patient’s ability to follow-up with the physician or his qualified staff was usually aimed at promoting a patients understanding of the treatment or procedure to be completed. The Court’s decision, however, has put an end to this practice.

Wednesday, July 26, 2017 10:54:03 AM

macleod

Some details still to be worked out... have to believe that most docs are, and have been talking to their patients about the upcoming procedure but may not be the one to fill in the legalese consent form...

Saturday, July 29, 2017 2:26:09 PM

jastrite

Retired orthopedic surgeon here. Agree completely with the decision by the court. PA's and CRNP's have never performed the surgery purposed nor do they have the depth of understanding of the proposed procedure that a board certified MD has. I am astonished that any MD ever though he / she could delegate this responsibility. There is a long-held precedent in PA law that the MD is the "Captain of the Ship." Time to stop being lazy! The PAMEDSOC should withdraw its amicus brief.

Wednesday, August 30, 2017 5:19:24 PM

choicykid1@aol.com

For those in private solo practice this ruling has little impact. But it now prevents a licensed physician who is in a fellowship from consenting a patient for a surgery. Also prevents one partner in a group obtaining consent for a partner even though both are fully qualified and experienced.

Wednesday, August 30, 2017 9:52:40 PM

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