Berks Barrister Winter 2018 - 23

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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."

The Decision's Effect

(d) Liability. -
(1) A physician is liable for failure to obtain the informed
consent only if the patient proves that receiving such
information would have been a substantial factor in the
patient's decision whether to undergo a procedure set forth
in subsection (a).
40 P.S. § 1303.504
The Court noted under the plain language of the MCARE Act,
the duty to obtain a patient's informed consent for surgery belongs
to the surgeon. The Act does not merely require that the patient's
consent be informed; it specifically imposes the duty upon the
surgeon to provide the patient the requisite information to obtain
an informed consent.
The MCARE Act is entirely consistent with the longstanding
common law requirement that the duty to obtain informed consent
belongs to the physician and is non-delegable. It was also already
well settled that a hospital itself was not liable for an informed
consent claim, as it has always been based upon a battery claim
against the surgeon performing the surgery.
The Court made it clear that a surgeon cannot rely upon a
subordinate to disclose the information required to obtain informed
consent. The rationale being "[w]ithout direct dialog in a two-way
exchange between the physician and patient, the physician cannot
be confident that the patient comprehends the risks, benefits,
likelihood of success and alternatives." The Court recognized
the real world situation of a patient in the vulnerable position of
entrusting his or her care and well-being to the surgeon based upon
the surgeon's education, training, and expertise. It is incumbent
upon the surgeon to cultivate a relationship with the patient and
to familiarize himself or herself with the patient's understandings
and expectations. "Were the law to permit physicians to delegate
the provisions of critical information to staff, it would undermine
patient autonomy and bodily integrity by depriving the patient
of the opportunity to engage in a dialogue with his or her chosen
health care provider."
Thus, the Supreme Court reversed the lower courts, and made
it clear that "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

It remains to be seen how much of an impact
this holding will have in the medical malpractice
community. While reported at many civil litigation
seminars, there have been no hard numbers
promulgated as to whether this mandate will
increase or decrease the number of informed consent
cases filed.
Many from the plaintiff 's perspective believe
that this will decrease the number of informed
consent cases filed in the future, as it will compel
surgeons to have face to face discussions and not
rely on assistants to simply "get a form signed." The
patient will have the opportunity to get all of the
necessary information and have their questions answered directly
from the surgeon. A few in the defense community have cautioned
that this may have the opposite effect, as patients may be more
inclined to speak to a physician's assistant or nurse about important
questions concerning the surgery and recovery as the patient may
be intimidated by the surgeon or feel that the surgeon is too busy to
spend the necessary time to have a back and forth exchange.
Despite these attempts to place a "negative spin" on this holding,
the benefit to the patients are obvious. They will now be informed
of the real risks and benefits of the procedure by the surgeons in
whom they are placing all of their trust. The PA Supreme Court
has now mandated that a true informed consent must be obtained.
Having real face-to-face discussions between the patient and
surgeon will likely result in less claims, as the patient will be warned
of risks and presented with alternatives by the surgeon. While some
have expressed concerns that more informed consent cases will be
filed simply based upon technical breachs of the requirement of
direct communications, those concerns seem overblown given the
financial realities of pursuing medical malpractice claims. The costs
associated with pursuing these claims will mean that mere technical
breaches of obligations would not alter the need to establish a very
substantial harm or damages in order to justify lawsuits.
What also remains to be seen is appellate clarification as to
the type and scope of evidence which can be presented to the
jury in these types of cases. For instance, if a patient is asked to
watch a video which has information concerning the surgery and
related matters, will that be sufficient and admissible under the
circumstances if the surgeon is not present? Similar questions could
come up with respect to pamphlets or other written materials given
to patients but not discussed. Can a surgeon hand the patient the
typical overly detailed forms that often go on page after page and
are confusing to everyone? The lesson to be learned is that patients'
lawyers must be vigilant and scrutinize these
consent issues in every case. This advice
comes straight from the horse's mouth!
Michael W. McGuckin, Esquire, is with
the Reading law firm of Liever, Hyman &
Potter, P.C., where he focuses his practice
on complex personal injury litigation,
including medical malpractice.
Winter 2018 | 23
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Berks Barrister Winter 2018

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