Special Law Alert - Two Recent Unfavorable Appellate Decisions
Pennsylvania Appellate Courts recently issued two significant decisions resulting in widespread practical implications for patient treatment and litigation involving informed consent and medical negligence. The more recent case, Shinal v. Toms, 2017 Pa. LEXIS 1385 (June 20, 2017, Wecht J. writing for the majority), requires healthcare providers' immediate attention, as the Supreme Court ruled physicians must personally review procedures and risks with a patient to properly obtain that patient's informed consent. The second decision, Mitchell v. Shikora, 2017 Pa. Super. LEXIS 322 (May 5, 2017, Musmanno, J.), while not requiring immediate practical changes in a provider context, deemed evidence related to known risks and complications inadmissible in a case of medical negligence. Both decisions are undoubtedly unfavorable rulings for medical malpractice defendants, as this alert further explores.
Shinal: The Supreme Court of Pennsylvania Holds Physicians Must Personally Disclose Required Information to Ensure Proper Informed Consent
Physicians have long understood their duty to obtain a patient's informed consent before performing certain procedures, while also knowing this duty is non-delegable and could result in direct liability if not satisfied. Nevertheless, it had been established good practice for physicians to allow qualified staff to help guide their patients through informed consent procedures and facilitate the signing of such forms on behalf of the physician. No longer. In Shinal, a 4-3 majority of the Supreme Court of Pennsylvania held a physician "may not delegate to others his or her obligation to provide sufficient information to obtain a patient's informed consent." Given this holding, treating physicians must ensure that they personally perform all essential functions related to obtaining informed consent from the patient.
In Shinal, defendant Dr. Steven A. Toms performed brain surgery on plaintiff Megan Shinal to remove a tumor. Before the surgery, Ms. Shinal and Dr. Toms met for a preliminary discussion about her goals, the procedures available to her and the risks associated with those procedures. Importantly, Ms. Shinal did not explicitly express to Dr. Toms at this meeting that she wanted him to remove the tumor altogether (compared to other less risky procedures aimed at controlling, but not healing, her condition), though Dr. Toms assumed she sought complete removal based on their conversation. Between this preliminary meeting and the eventual surgery, Ms. Shinal interacted primarily with Dr. Toms' physician assistant about the procedure and its risks. The physician assistant answered Ms. Shinal's questions by telephone and then met with Ms. Shinal at the hospital to complete the informed consent forms. During the surgery, Dr. Toms perforated Ms. Shinal's carotid artery, causing hemorrhage, stroke, brain injury and partial blindness.
Consequently, Ms. Shinal sued Dr. Toms, claiming a lack of informed consent. Instructed by the trial judge to consider all information provided to Ms. Shinal relating to the procedure, the jury found Dr. Toms had met the duty. The Superior Court affirmed. Overturning these decisions, the four-justice majority determined "a physician cannot rely upon a subordinate to disclose the information required to obtain informed consent," reasoning informed consent "contemplate[s] a back-and-forth, face-to-face exchange" between the physician and patient and the "duty to obtain the patient's informed consent belongs solely to the physician." In a respectful yet fervent dissent, Justice Baer found the legislature's use of the passive voice in 504(b) of the MCARE Act revealing of an intent to allow physicians to use qualified staff to notify a patient. Justice Baer notes the decision "improperly injects the judiciary into the day-to-day tasks of physicians such as Dr. Toms and fails to acknowledge the reality of the practice of medicine."
As Justice Baer suggests, this decision has far-reaching consequences given the way many physician practices use staff to help guide patients through the informed consent process. For one, a treating physician's responsibilities are now greatly expanded. The physician is now directly responsible for fulfilling the duty expressed in § 504(b) of the MCARE Act; this includes notifying the patient of the potential procedures to be performed and "the risks and alternatives that a reasonably prudent patient would require to make an informed decision as to that procedure." It is unclear whether physicians' staff can supplement physician instructions once (or while) the physician fulfills the duty to inform, although there is no good reason why staff should not be able to supplement physician instructions. Physicians should also ensure that their signature appears on the informed consent form, not a staff member's. As a physician is still directly liable for a lack of informed consent alone (notwithstanding any negligence), physicians and advisors should review informed consent procedures immediately to ensure compliance with this opinion.
Mitchell: The Superior Court of Pennsylvania Holds Evidence Related to a Procedure's Risk is Inadmissible in a Medical Malpractice Case Without an Informed Consent Claim
In another important ruling relating to informed consent and medical negligence, the Superior Court of Pennsylvania reversed a trial court ruling and held evidence related to a procedure's known risks and complications should have been deemed inadmissible evidence. The Mitchell decision is rather significant as it is the first appellate decision to apply Brady v. Urbas, 111 A.3d 1155 (Pa. 2015), a case where the Supreme Court of Pennsylvania ruled that the relevance (and admissibility) of risks and complications to establish the standard of care should be decided on a case-by-case basis, but a patient's informed consent to such risks are likely never relevant. See id. at 1161-62.
Mitchell involved a plaintiff who sued an OB/GYN and his employer for medical negligence, and without a claim for informed consent, after the OB/GYN accidentally severed the plaintiff's bowel during a hysterectomy. At trial, the plaintiff filed a motion in limine attempting to exclude: (1) the patient's consent to the procedure, and (2) evidence that a bowel injury was a known risk or complication of the surgery. Consistent with Brady, the trial judge ruled to exclude evidence related to patient's consent but used his discretion in allowing evidence related to the procedure's risks to support the OB/GYN's standard of care. Defense counsel referenced known risks and complications throughout its case. The jury returned a defense verdict. The plaintiff appealed, arguing known risks and complications should be inadmissible because they are irrelevant or misleading to the jury.
The Superior Court reversed the trial court and remanded for a new trial. In its ruling, the court determined evidence related to risks and complications to be irrelevant to the proper standard of care for a hysterectomy. Further, the court held evidence would also be deemed inadmissible for having the tendency to mislead and/or confuse the jury. The court reasoned such information tends to mislead by inferring the injuries were simply the result of risks and complications of the surgery, as opposed to focusing on whether the defendant conformed to the standard of care.
Unlike Shinal, Mitchell does not require providers to take immediate action. Nevertheless, providers should understand an inability to raise evidence related to known risks and complications may weaken the defense in a medical negligence suit.
*Contributing author, Nathaniel C. Simon, law clerk in the firm’s King of Prussia office.
This Special Law Alert is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent 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. Copyright © 2017 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.