Delaware County Medical Society Winter 2017 - 29

FEATURE

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.
In Shinal v. Toms, a patient alleged that her surgeon failed
to provide information required to obtain informed consent
prior to the removal of a non-malignant brain tumor. The
trial court provided instructions to the jury, permitting them
to consider information provided by the surgeon's physican
assistant as part of the informed consent process. The
trial court subsequently found in favor of the surgeon.
The patient later appealed to the Superior Court,
challenging the trial court's instruction. The Superior
Court agreed with the trial court's instruction and held that
information provided by a surgeon's qualified staff could
be considered part of the informed consent process.
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 for surgery.

Furthermore, the Court held that a physician cannot be
confident that a patient comprehends the risks of and
alternatives to treatment without direct dialogue. The
physician 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 could have significant
ramifications for Pennsylvania physicians. With this
decision, the Pennsylvania Supreme Court holds that
physicians alone have the duty to provide patients
with the sufficient information required to obtain
informed consent. Thus, Pennsylvania physicians
can seemingly no longer rely upon the aid of their
qualified staff in the informed consent process.
PAMED members can access member-only resources at
www.pamedsoc.org/informedconsent, including a
Quick Consult fact sheet and brief video that
summarize a physician's obligations
under Pa.'s informed consent law,
discuss potential legal risk, provide
recommendations.

Following arguments before the Pennsylvania Supreme
Court in November 2016, the Court issued its decision
in the matter on June 20, 2017. The Pennsylvania
Supreme Court reversed the Superior Court's order
affirming the trial court's jury instruction.
The duty to obtain a patient's informed consent is a nondelegable duty, the Pennsylvania Supreme Court ruled,
belonging solely to the physician conducting the surgery or
treatment. The Court found no provisions in the Mcare Act
allowing for information given by a physician's subordinates
to satisfy the physician's burden to obtain informed consent.

Not a member of PAMED?

You can join PAMED and your county
medical society online at www.pamedsoc.
org/join or by calling PAMED's Knowledge
Center at 855-PAMED4U (855-726-3348).

www.delcomedsoc.org

DELAWARE COUNTY MEDICINE & HEALTH

http://www.pamedsoc.org/informedconsent http://www.pamedsoc http://www.delcomedsoc.org

Table of Contents for the Digital Edition of Delaware County Medical Society Winter 2017