June 22, 2017
A June 20, 2017, holding by the Supreme Court of Pennsylvania will require physicians across the Commonwealth of Pennsylvania to change their practices for obtaining informed consent from patients. Physicians now must personally obtain informed consent and must personally answer their patients’ questions. Additionally, communications between physicians’ qualified staff members and patients will no longer be admissible at trials as to the issue of whether the physicians obtained informed consent from their patients. As the dissent noted, “today’s decision will have a far-reaching, negative impact on the manner in which physicians serve their patients. For fear of legal liability, physicians now must be involved with every aspect of informing their patients’ consent, thus delaying seriously ill patients access to physicians and the critical services that they provide.” Shinal v. Toms, 31 MAP 2016, 2017 Pa. LEXIS 1385, at *62 (Pa. 2017) (Baer, J., dissenting).
Brief Statement of the Holding
“A physician may not delegate to others his or her obligation to provide sufficient information in order to obtain a patient’s informed consent. Informed consent requires direct communication between physician and patient, and contemplates a back-and-forth, face-to-face exchange, which might include questions that the patient feels the physician must answer personally before the patient feels informed and becomes willing to consent.” Shinal v. Toms, 31 MAP 2016, 2017 Pa. LEXIS 1385, at *52 (Pa. 2017) (emphasis added). All prior decisions holding otherwise are overruled. Id. at 53.
Detailed Discussion of the Case
Pertinent Factual Background
Megan L. Shinal had a recurrent non-malignant tumor in the pituitary region of her brain. Id. at *3. She consulted with Dr. Steven A. Toms regarding removal of the non-malignant tumor. Id. Dr. Toms was the Director of the Department of Neurosurgery at Geisinger Medical Center and was employed by the Geisinger Clinic as a neurosurgeon. Id. at *2-3.
On November 26, 2007, Dr. Toms met Mrs. Shinal for her first and only pre-surgical appointment with him. Id. at *3. Dr. Toms “reviewed with Mrs. Shinal the alternatives, risks, and benefits of total versus subtotal resection, and shared with Mrs. Shinal his opinion that, although a less aggressive approach to removing the tumor was safer in the short term, such an approach would increase the likelihood that the tumor would grow back.” Id. at *4. He also “advised Mrs. Shinal that total surgical resection offered the highest chance for long term survival.” Id. By the end of the appointment, Mrs. Shinal had decided to proceed with surgery, but the surgical approach had not yet been determined. Id.
On December 19, 2007, Mrs. Shinal had a telephone conversation with Dr. Toms’ physician assistant. Id. Mrs. Shinal “asked the physician assistant about scarring that would likely result from the surgery, whether radiation would be necessary, and about the date of the surgery.” Id. at *4-5. The physician assistant “also answered questions about the craniotomy incision.” Id. at *5.
On January 17, 2008, Mrs. Shinal presented to the Geisinger Medical Center’s Neurosurgery Clinic where she met with Dr. Toms’ physician assistant. Id. “The physician assistant obtained Mrs. Shinal’s medical history, conducted a physical, and provided Mrs. Shinal with information relating to the surgery. Mrs. Shinal signed an informed consent form.” Id. The informed consent form “did not address the specific risks of total versus subtotal resection.” Id. at *5 n.1.
On January 31, 2008, Mrs. Shinal presented to Geisinger Medical Center where Dr. Toms performed an open craniotomy total resection of the brain tumor. Id. at *5. During the operation, Dr. Toms perforated Mrs. Shinal’s carotid artery, resulting in hemorrhage, stroke, brain injury, and partial blindness.Id.
On December 17, 2009, Mrs. Shinal and her husband filed a medical malpractice action in the Court of Common Pleas of Montour County. Id. at *5-6. The Complaint contained a cause of action for lack of informed consent. Id. at *6. According to the Complaint, “Dr. Toms failed to explain the risks of the surgery to Mrs. Shinal or to offer her the lower risk surgical alternative of subtotal resection of the benign tumor, followed by radiation.” Id. at *6.
At trial, the court instructed the jurors that they could consider both the information that Dr. Toms provided to Mrs. Shinal and the information that Dr. Toms’ physician assistant provided to Mrs. Shinal in determining whether Dr. Toms had satisfied his duty to obtain informed consent from Mrs. Shinal for the January 31, 2008 surgery. Id. at *11-12.
The jury returned a verdict in favor of Dr. Toms. Id. at *12. The Shinals moved for post-trial relief, arguing inter alia the trial erred in instructing the jurors that they could consider any relevant information communicated to Mrs. Shinal by Dr. Toms’ physician assistant. Id. The trial court denied post-trial relief, and the Superior Court affirmed. Id. The Shinals appealed to the Supreme Court of Pennsylvania. Id. at *2.
Whether the trial court misapplied the common law and the MCARE Act when it instructed the jury that it could consider information provided to Mrs. Shinal by Dr. Toms’ physician assistant in deciding whether Dr. Toms obtained Mrs. Shinal’s informed consent for the January 31, 2008 surgery. Id. at *42-43.
The Shinals' Argument
The trial court’s jury charge was a misstatement of the common law and the MCARE Act. Id. at *43-44.
Dr. Toms' Argument
While it is the physician’s duty to obtain informed consent, the physician does not have to supply all of the information personally. Id. at *44. The information conveyed – not the person conveying it – is what determines informed consent. Id.
Supreme Court of Pennsylvania's Analysis
In Valles v. Albert Einstein Medical Center, 569 Pa. 542, 805 A.2d 1232 (2002), the Supreme Court of Pennsylvania found that hospitals could not be held vicariously liable for physicians’ failures to obtain informed consent. The Court in Valles held:
“[A] battery which results from a lack of informed consent is not the type of action that occurs within the scope of employment. In our view, a medical facility cannot maintain control over this aspect of the physician-patient relationship. Our lower courts have recognized that the duty to obtain informed consent belongs solely to the physician. Informed consent flows from the discussions each patient has with his physician, based on the facts and circumstances each case presents. We decline to inject an element of a hospital’s control into this highly individualized and dynamic relationship. We agree with the lower court that to do so would be both improvident and unworkable. Thus, we hold that as a matter of law, a medical facility lacks the control over the manner in which the physician performs his duty to obtain informed consent so as to render the facility vicariously liable.”
Valles, 569 Pa. at 554, 805 A.2d at 1239 (internal citations omitted).
In Shinal, the Supreme Court interpreted Valles as holding “that the duty to obtain informed consent belongs solely to the physician and that it is non-delegable.” Shinal, 2017 Pa. LEXIS at *47. The Court then noted that Valles is consistent with the plain language of the MCARE Act, which states that “a physician owes a duty to a patient to obtain informed consent[.]” Id. at *50-51; 40 P.S. § 1303.504 (2016).
Supreme Court of Pennsylvania's Holding
The Court held:
“Thus, we hold that a physician may not delegate to others his or her obligation to provide sufficient information in order to obtain a patient’s informed consent. Informed consent requires direct communication between physician and patient, and contemplates a back-and-forth, face-to-face exchange, which might include questions that the patient feels the physician must answer personally before the patient feels informed and becomes willing to consent. The duty to obtain the patient’s informed consent belongs solely to the physician. Bulman and Foflygen, upon which the lower courts and Dr. Toms relied, are Superior Court cases which pre-date Valles and the MCARE Act. To the extent that those decisions permit a physician to fulfill through an intermediary the duty to provide sufficient information to obtain a patient’s informed consent we overrule them. We reverse the Superior Court’s order affirming the trial court’s denial of the Shinals’ motion for post-trial relief, and we remand for a new trial consistent with this opinion.”
Shinal, 2017 Pa. LEXIS at *52-53.
Post & Schell, P.C.’s Professional Liability Department Chair, Donald N. Camhi, Esquire, may be contacted at (215) 587-1015 and at firstname.lastname@example.org for further comment and guidance as to how to comply with the Supreme Court of Pennsylvania’s holding.
Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.
About the Authors:
Donald N. Camhi is a Principal and Chair of the Firm's Professional Liability Defense Department. Mr. Camhi restricts his practice to the litigation of medical professional liability cases where he represents integrated delivery systems, multi-hospital systems, stand-alone hospitals, physicians, nurses, technicians and ancillary healthcare professionals. Learn More
Melinda A. Schumaker is an Associate in the Firm's Professional Liability Defense Practice Group. She specializes in the defense of healthcare systems, hospitals, physicians and nurses in complex medical professional liability lawsuits. She accepts and handles cases directly assigned to her by clients and provides senior associate level assistance to multiple established partners. Learn More