Seismic Shift in Pennsylvania Medical Malpractice Informed Consent Cases
Defense Digest, Vol. 23, No. 4, December 2017
By Kathleen Kramer, Esq. & Daniel H. Tran, Esq.*
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Key Points:
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On June 20, 2017, the Pennsylvania Supreme Court appears to have changed the landscape of Pennsylvania medical malpractice actions based upon a lack of informed consent. In its opinion in Shinal v. Steven A. Toms, M.D., the court specifically held:
[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.
162 A.3d 429, 455 (Pa. 2017).
This article will set forth an overview of how Shinal changes the manner in which informed consent may be obtained in Pennsylvania. In addition, it will discuss the manner in which medical malpractice cases premised on a lack of informed consent will now be litigated within the state.
How Must Informed Consent Be Obtained in Pennsylvania in Light of Shinal?
Given the court’s holding in Shinal, proper informed consent now requires that the physician involved in the procedure at issue (i.e., the operating physician) have a direct face-to-face exchange with the patient regarding the material risks/complications of the procedure. Prior to Shinal, it was understood that proper informed consent could be obtained not only from the operating physician, but also from other qualified staff, such as a nurse, a resident physician, another physician and other knowledgeable persons who would provide the patient with the information regarding whether to proceed with, or defer, a procedure based on its risks/complications. In short, the proper focus on an informed consent claim was the information conveyed, not necessarily on the person(s) who conveyed it to the patient. Shinal changed that.
Megan Shinal claimed that the defendant, neurosurgeon Steven A. Toms, M.D., failed to obtain her informed consent. Ms. Shinal alleged that Dr. Toms did not give her all of the information necessary for her to make an informed decision about the surgery she was having. She went forward with the surgery and suffered a known complication. She claimed that, had Dr. Toms given her all of the information necessary, she would have never undergone the operation. She filed a lawsuit, claiming that Dr. Toms failed to obtain informed consent from her.
Dr. Toms had initial discussions with Ms. Shinal to obtain her informed consent. However, Ms. Shinal later called the physician’s office and spoke to Dr. Toms’s physician’s assistant about other risks and benefits of the surgery she was to undergo. At issue in the case, and on appeal, was whether the jury could find that Dr. Toms properly obtained Ms. Shinal’s informed consent, even though some of those discussions occurred between Ms. Shinal and his physician’s assistant. The jury found in favor of the defendant, acknowledging that Dr. Toms and his physician’s assistant had properly advised Ms. Shinal of the risks/complications of the procedure.
In her appeal, Ms. Shinal argued that the jury should not have been allowed to consider what the physician’s assistant told her about the surgery. She contended that only what Dr. Toms told her was pertinent to the case. The Superior Court disagreed with Ms. Shinal and affirmed the jury’s verdict.
Ms. Shinal then appealed to the Pennsylvania Supreme Court and made the same argument. The Pennsylvania Supreme Court agreed with Ms. Shinal, holding that a new trial was warranted because the jury should not have been permitted to consider what the physician’s assistant told her. In so holding, the court appears to have mandated that the actual operating physician (not his or her nurses, physician’s assistants or physician colleagues) must directly discuss with the patient the risks/complications and intended benefits of the surgery in order to properly obtain informed consent. In other words, the surgeon cannot delegate any of those discussions or responsibilities to other physicians, nurses, residents, physician’s assistants or anyone else.
How Will Cases Premised on Lack of Informed Consent Be Brought to Court Post-Shinal?
Post-Shinal, a plaintiff filing a medical malpractice case based on a lack of informed consent will have to obtain a Certificate of Merit showing that an appropriate physician has reviewed the medical records and believes that the operating physician did not obtain proper informed consent, which, in turn, caused the patient to suffer injuries. Much, if not all, emphasis will be placed on what the operating physician conveyed to the patient regarding the procedure. A jury will still serve its fact-finding function to determine whether the information provided to the patient by the operating physician was sufficient to obtain informed consent. While the informed consent forms are certainly relevant to show the discussions and information conveyed between the patient and operating physician, the operating physician will also be able to testify to the jury regarding what discussions occurred based on the physician’s recollections, customs and practices. Again, the focus in a medical malpractice case based on a lack of informed consent will be on the discussions and information conveyed by and between the patient and the operating physician.
Because Shinal is a new pronouncement on informed consent, it is inevitable that the courts of this Commonwealth will provide interpretations of that holding based on the multitude of scenarios that may be litigated regarding informed consent. However, medical professionals and medical malpractice lawyers should be guided by the Shinal court’s holding, which limits the inquiry regarding whether informed consent has been adequately obtained to solely the discussions and interactions that have occurred between the patient and operating physician.
*Kate, a shareholder in our Philadelphia, Pennsylvania office, can be reached at 215.575.2618 or kmkramer@mdwcg.com. Dan is an associate in our Philadelphia office who can be reached at 215.575.2592 or dhtran@mdwcg.com.
Defense Digest, Vol. 23, No. 4, December 2017. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2017 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.