LCHM Winter18 - 26
PA Supreme Court Ruling Impacts
How Physicians Obtain Informed Consent
BY THE PENNSYLVANIA MEDICAL SOCIETY
n a June 20, 2017, decision
regarding the Medical Care
Availability and Reduction of
Error (Mcare) Act's informed
consent requirement, the Pennsylvania
Supreme Court 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.
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
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
Following arguments before the could have significant ramifications
Pennsylvania Supreme Court in No- for Pennsylvania physicians. With
vember 2016, the Court issued its this decision, the Pennsylvania Sudecision in the matter on June 20, preme Court holds that physicians
In Shinal v. Toms, a patient alleged 2017. The Pennsylvania Supreme alone have the duty to provide pathat her surgeon failed to provide in- Court reversed the Superior Court's tients with the sufficient information
formation required to obtain informed order affirming the trial court's jury required to obtain informed consent.
consent prior to the removal of a instruction.
Thus, Pennsylvania physicians can
non-malignant brain tumor. The trial
seemingly no longer rely upon the
court provided instructions to the jury,
The duty to obtain a patient's in- aid of their qualified staff in the
permitting them to consider informa- formed consent is a non-delegable informed consent process.
tion provided by the surgeon's physican duty, the Pennsylvania Supreme Court
assistant as part of the informed consent ruled, belonging solely to the physician
PAMED members can access
process. The trial court subsequently conducting the surgery or treatment. member-only resources at www.
found in favor of the surgeon.
The Court found no provisions in the pamedsoc.org/informedconsent,
Mcare Act allowing for information including a Quick Consult fact
The patient later appealed to the given by a physician's subordinates to sheet and brief video, that summaSuperior Court, challenging the trial satisfy the physician's burden to obtain rize a physician's obligations under
court's instruction. The Superior Court informed consent.
Pennsylvania's informed consent
agreed with the trial court's instruction
law, discuss potential legal risk, and
and held that information provided
Furthermore, the Court held that provide recommendations.
by a surgeon's qualified staff could a physician cannot be confident that
be considered part of the informed a patient comprehends the risks of
and alternatives to treatment without direct dialogue. The physician
Not a member of PAMED?
You can join PAMED and your county medical society online at
pamedsoc.org/join or by calling PAMED's Knowledge Center at 855-PAMED4U (855-726-3348).
26 Lehigh County Health & Medicine | WINTER 2018