Last Updated: Apr 28, 2021
Legislation to address the state’s 2017 Supreme Court’s decision regarding the authority of a physician to delegate the task of obtaining a patient’s informed consent to another practitioner was recently introduced by Senator John Gordner. The Pennsylvania Medical Society (PAMED) strongly supports this legislation.
SB 425 was unanimously approved by the Senate on April 28, 2021. It will now go to the Pa. House for its consideration.
SB 425 would:
- Clarify that while physicians remain responsible for the overall care of their patients, the task of obtaining a patient’s informed consent may be delegated by a physician to a “qualified practitioner.”
- Allow health care facilities and physicians to develop policies and procedures regarding informed consent concerning when qualified practitioners other than physicians may obtain informed consent.
- Allow physicians and other qualified practitioners to rely on information provided by another qualified practitioner to obtain the informed consent of the patient and allow this information to be used as evidence in a proceeding in which it is alleged that the physician or other qualified practitioner failed to obtain informed consent.
- Clarify requirements in human research conducted pursuant to federal law and regulations related to informed consent.
- Clarify when a physician or qualified staff person is required to obtain a separate or new informed consent from a patient when informed consent was already obtained.
PAMED will continue to monitor this bill and provide updates to members.
In June 2017, the Pennsylvania Supreme Court ruled, in a 4-3 decision in the case of Shinal v. Toms, that physicians have a non-delegable duty under the MCare Act to obtain a patient’s informed consent. Additionally, the Court ruled that communications between a physician’s qualified staff members and patients will no longer be admissible at trial to establish whether the physician obtained informed consent.
You can find the Pennsylvania Medical Society’s (PAMED) overview of the Shinal v. Toms ruling here.
“This ruling severely hampers the concept of team-based care and ignores the realities of present-day health care,” said Sen. Gordner in his co-sponsorship memo. “It further takes away a physician’s medical expertise and judgment in determining how best to serve his or her patients.”
PAMED offers information that can help physicians and health care organizations navigate the informed consent process. We summarize a physician’s obligations under Pa.’s informed consent law, discuss potential legal risk, and provide recommendations.
Get informed consent resources here.
270.978 Fixing Informed Consent
PAMED is directed to work in cooperation with the Hospital and Health System Association of Pennsylvania to introduce legislation that will allow a qualified physician to delegate his or her duty to obtain informed consent to another provider who has knowledge of the patient, the patient’s condition, and the procedures to be performed on the patient. This legislation shall include language to ensure that all information exchanged between the patient and the individual obtaining informed consent be admissible in court. (Res. 406, H-2017)
You can view PAMED's Policy Compendium here.