Only Physicians Can Obtain Informed Consent From Patients
A recent Pennsylvania court ruling found that only physicians, not their subordinates, can obtain informed consent from patients prior to procedures. In Shinal v. Toms, 162 A.3d 429 (Pa. 2017), Plaintiff, Shinal, was a patient of Defendant, Dr. Toms. Shinal had consulted with Dr. Toms to discuss removal of a new tumor growth in her brain. In this consultation, Dr. Toms advised her of the risks associated with surgery and reviewed alternatives including a less aggressive approach called a subtotal resection (safer in the short run) versus a more aggressive approach called a total resection, which would be more dangerous in the short run but offer a better chance of resecting the entire tumor. After this consultation, Shinal decided to have the surgery but had not decided on the approach.
Following this consultation, Shinal’s interactions were entirely with Dr. Toms’ physician assistant. The assistant discussed potential scarring, whether radiation therapy would be necessary, and the date of the surgery. The assistant also answered Shinal’s questions about the craniotomy incision, and met with Shinal to obtain her medical history, conduct a physical and provide her with more information regarding the surgery. In this meeting, Shinal signed an informed consent form granting Dr. Toms permission to perform a resection of her tumor and the risks associated with this procedure. The form also acknowledged that Shinal had discussed the advantages and disadvantages of alternative treatments and that she understood the form’s contents, had an opportunity to ask questions and had sufficient information to give her informed consent to the operation. The form did not address the specific risks of total versus subtotal resection.
When Shinal underwent the procedure, the surgeon conducted a total resection and perforated her carotid artery resulting in hemorrhage, stroke, brain injury and partial blindness. Shinal initiated this medical malpractice lawsuit alleging that Dr. Toms failed to obtain her informed consent for the procedure. Shinal stated that if she had known the alternative approaches and risks of the total resection, she would have chosen the subtotal approach (less aggressive) alternative.
The Supreme Court of Pennsylvania held that a physician cannot rely upon a subordinate to disclose the information required to obtain informed consent, and cannot delegate to others his obligation to provide sufficient information to a patient prior to a procedure. The court ruling additionally stated that “without direct dialogue and two-way exchange between the physician and patient, the physician cannot be confident that the patient comprehends the risks, benefit, likelihood of success and alternatives.” The defendant’s actions ultimately violated the Medical Care Availability and Reduction of Error (MCARE) Act.