For many years, Pennsylvania medical practices have relied on their staff to provide paperwork to patients and help them understand it. One of the items typically included in this paperwork is an “informed consent” form, outlining the potential risks of the procedure so the patient can understand them.
Recently, however, the Pennsylvania Supreme Court ruled that staff members cannot obtain informed consent from patients before medical procedures. Instead, the physician is the only person who can do so.
In Shinai v. Toms, the plaintiff sought compensation for medical malpractice after suffering a stroke and other serious complications from a brain surgery. The patient had signed an informed consent form provided by a physician’s assistant, but claimed she hadn’t been told about the risks. At trial, the jury was instructed that it could consider the information the physician’s assistant provided to the patient. The jury found in favor of the physician.
The Pennsylvania Supreme Court, however, reversed. In a 4-3 decision, the Court held that the duty to obtain informed consent belongs solely to the physician. The physician may not delegate this duty to an assistant or any other staff member. The Court said, “Without direct dialogue and 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 ruling is limited to “major medical procedures” under Pennsylvania MCARE Act. However, this list includes a wide range of medical procedures, including surgery, radiation, blood transfusions, the insertion of surgical devices, and the use of experimental medication or devices. The ruling does not apply to routine or non-surgical treatments, according to the Pennsylvania Supreme Court’s decision.
Understanding informed consent rules is essential to determining whether medical malpractice occurred, and if so, to what damages an injured person may be entitled. An experienced Pittsburgh medical malpractice attorney can help. Contact Berger & Lagnese today at 412-471-4300 or via our online contact form to learn more.
The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney/client relationship. If you are seeking legal advice, please contact our law firm directly.