Berks County Medical Society Medical Record Fall 2017 - 28

M e d i c a l R e c o R d F e at u R e

Update on Pennsylvania
Supreme Court Ruling on
Informed Consent
Reprinted with permission, Pennsylvania Physician magazine, 2017.

A

Pennsylvania Supreme Court
ruling is having a significant
impact on how physicians in
the Commonwealth obtain informed
consent. The ruling in the medical
liability case Shinal v. Toms states that
a physician's duty to obtain a patient's
informed consent is NOT a delegable
duty - it is the responsibility of the
physician conducting the patient's
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 nonmalignant brain
tumor. The trial court's instructions permitted the jury to consider
information provided by the surgeon's physician's assistant as part of
the informed consent process. The trial court found in favor of the
surgeon, and a subsequent Superior Court order affirmed the trial
court's jury instruction.
On appeal, the Supreme Court ultimately ruled - in a 4-3
decision issued on June 20, 2017 - that the information provided
by the physician's assistant did not constitute informed consent.
Physicians may face increased legal liability if they do not strictly
construe the majority's decision.
Under Pennsylvania law, 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 five
procedures:
* Performing surgery, including the related administration of
anesthesia;
* Administering radiation or chemotherapy;

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* Administering a blood transfusion;
* Inserting a surgical device or appliance;
* Administering an experimental
medication, using an experimental
device, or using an approved medication
or device in an experimental manner.
Consent is not required for a
procedure if an emergency exists and
immediate action is needed to save the
patient's life or health.
The High Court did not address whether the law would apply
to other procedures or treatments for which hospitals or physician
practices may require informed consent.
Recommendations for actions include:
* Practices should, if necessary, revise their informed consent
policies and procedures.
* Hospital medical staffs should develop medical staff policy
and procedures to help ensure the proper implementation of
the new informed consent requirement.
* Hospital medical staffs must work with the hospital's
administration to align hospital policy regarding informed
consent with related medical staff policies and procedures.
* Physicians should ensure that all informed consent forms are
properly executed and filed.


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Berks County Medical Society Medical Record Fall 2017

Table of Contents for the Digital Edition of Berks County Medical Society Medical Record Fall 2017

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