Berks Barrister Winter 2018 - 22

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"STRAIGHT FROM THE DOCTOR'S MOUTH"
The PA Supreme Court Speaks Out
What has to be said and who has to say it
to obtain a patient's informed consent for surgery?
By Michael W. McGuckin, Esquire

he Pennsylvania Supreme Court has confirmed that direct
communication between the surgeon and the patient is
required to obtain an informed consent for surgery. In
Shinal v. Toms, 2017 Pa. Lexis 1385 (Pa. June 20, 2017), Justice
Wecht authored the opinion, which fortifies that the duty to
obtain informed consent belongs solely to the surgeon and is nondelegable. The surgeon cannot simply delegate to his or her staff the
responsibility to explain the risks and alternatives that a reasonably
prudent patient would require to make a decision as to whether or
not to proceed with the proposed surgery. Direct communication is
required to satisfy the obligation to obtain a truly informed consent
for surgery.

Factual Background
The Shinal case involved surgery performed at Geisinger Health
System's flagship hospital, Geisinger Medical Center, located in
Montour County. The case focused on a surgical procedure to
remove a recurrent non-malignant tumor from the pituitary region
of the patient's brain. The defendant-surgeon initially met with
the patient, and, according to his trial testimony, he engaged in a
discussion concerning the patient's goals and expectations in life
and the risks of different approaches to surgery, including possible
damage to the nearby carotid artery and the optic nerve.
A few weeks later, the patient had a telephone conversation
with the surgeon's physician assistant. The patient testified that
she asked the physician's assistant about scarring that would likely
result from the surgery and whether radiation would be necessary.
Then 14 days before the surgery, the patient met with the physician
assistant, who conducted a physical examination and provided the
patient with information relating to the surgery. At that office visit,
the patient signed an "informed consent" form.
When the surgery was performed a few weeks later, the
surgeon perforated the patient's carotid artery, which resulted in
hemorrhage, stroke, brain injury and partial blindness.
The patient and her husband thereafter commenced a medical
malpractice action in Montour County alleging that the surgeon
failed to obtain her informed consent for the surgery. The patient
claimed that the surgeon did not explain the risk of the surgery
to her, and failed to offer her the lower risk surgical alternative of
subtotal resection of the benign tumor, followed by radiation. The
patient testified at trial that she was unable to recall being informed
of the relative risks of the surgery, other than coma and death. She
also testified that, had she known the alternative approaches to
surgery, i.e., total versus subtotal resection, she would have chosen
subtotal resection as the safer, less aggressive alternative.
The case proceeded to trial and following the presentation
of evidence, the trial court instructed the jury with regard to
the surgeon's duty to obtain informed consent as follows: "In

considering whether [the surgeon] provided consent to [patient],
you may consider any relevant information you find was
communicated to the patient by any qualified person acting as an
assistant to [surgeon]." During deliberations, the jury asked the
Court whether information conveyed by physician assistants could
satisfy informed consent requirements. In response, the trial court
essentially repeated its prior instruction.
The jury returned a verdict in favor of the defendant-surgeon,
and the patient moved for post-trial relief. The patient asserted
that the trial court erred in its informed consent instructions.
Specifically, the patient asserted that the trial court improperly
instructed the jury that they could consider any relevant
information communicated to the patient by any qualified person
acting as an assistant to the surgeon.
The Superior Court rejected the patient's argument that the
trial court's informed consent charge, which permitted the jury
to consider information provided by the physician assistant,
was erroneous and prejudicial. The case was appealed to the
Pennsylvania Supreme Court for this decision.

Supreme Court's Decision
The Supreme Court's analysis1 focused on the Doctrine of
Informed Consent, noting that the Doctrine developed through
the common law under the theory that a surgery conducted
without consent was a battery.
The Court also took into account the MCARE Act's
codification of informed consent. The Medical Care Availability
and Reduction of Error (MCARE) Act defines informed consent as
follows:
(a) Duty of physicians. - Except in emergencies, a physician
owes a duty to a patient to obtain the informed consent of
the patient or the patient's authorized representative prior to
conducting the following procedures:
(1) Performing surgery, including the related
administration of anesthesia.
***
(b) Description of procedure. - Consent is informed if the
patient has been given a description of a procedure set forth in
subsection (a) and the risks and alternatives that a reasonably
prudent patient would require to make an informed decision
as to that procedure. The physician shall be entitled to present
evidence of the description of that procedure and those risks
and alternatives that a physician acting in accordance with
accepted medical standards of medical practice would provide.
***

The Court also decided an issue as to whether certain jurors should have been excluded during voir dire due to their
relationships with the surgeon.
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Berks Barrister Winter 2018

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