Recently, I underwent orthopedic surgery for a debilitating back condition. My surgeon and I discussed whether or not I was satisfied with my pre-surgical condition and, when I emphatically stated no, the planned surgery was explained to me by the surgeon. This discussion included the likelihood of failure, the degree of difficulty, the possible negative effects and post-operative limitations. After this discussion, I reiterated my desire to have this surgery performed. (As of this writing, the surgery has worked very well. My decision was the correct one.)
Legally, any patient undergoing certain medical procedures is entitled by law to receive Informed Consent. Informed Consent requires that the nature of the procedure, likelihood of success and failure and alternatives to the procedure are to be presented to a patient by a physician. Previously in Pennsylvania, Informed Consent was permitted to be obtained by a staff member of the physician performing the procedur. Earlier in 2017 however, the Pennsylvania Supreme Court, in the case of Shinal v Toms M.D., held that only a physician can obtain Informed Consent.
In the Shinal case, Mrs. Shinal underwent an open craniotomy total resection, performed by Dr. Toms. During surgery, Dr. Toms “perforated Mrs. Shinal’s carotid artery, which resulted in hemorrhage, stroke, brain injury and partial blindness.”
Mrs. Shinal and her husband then sued Dr. Toms for malpractice, alleging in part, that Mrs. Shinal did not receive Informed Consent before surgery as her consent was procured by a physician’s assistant employed by Dr. Toms and not from Dr. Toms directly. A decision in favor of Dr. Toms was ultimately appealed to the Pennsylvania Supreme Court by the Shinals. The Supreme Court held that Dr. Toms did not obtain informed consent from Mrs. Shinal, as he did not personally explain the surgery and its possibilities.
Under Pennsylvania law, if a medical procedure is performed without the informed consent of a patient, the procedure is a “battery” which is a civil wrong, regardless of whether or not negligence occurred. In a battery, a Plaintiff can obtain money damages.
The Pennsylvania Medical Care Availability and Reduction of Error Act, defines Informed Consent, as follows:
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
(2) Administering radiation or chemotherapy
(3) Administering a blood transfusion
(4) Inserting a surgical device or appliance
(5) Administering an experimental medication, using an experimental device or using an approved medication or device in an experimental manner
The physician’s duty to obtain Informed Consent extends to a discussion of the following:
A description of a procedure 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 Supreme Court ruled that the duty of a physician is non delegable and that only the physician can provide the necessary information and obtain a patient’s informed consent. A patient has a right to “medical self-determination.” Also, a patient has the right to a direct dialogue and a two way exchange with a physician, who is obligated to “cultivate a relationship” with a patient. The Shinal holding contemplates a “back and forth, face-to-face exchange” which would be the product of direct communication between physician and patient.
What then does the Shinal holding mean to you? It means that your physician has the duty to take the necessary time to explain the procedure, any alternatives and any possible negative outcomes and to listen to you and respond to questions so that your decision to undergo a medical procedure or not is truly the product of Informed Consent.
Prepare for meeting your physician with a comprehensive list of questions and concerns and pose those questions and concerns to your physician. Do not rest until your questions and concerns have been addressed by your physician fully and completely.
Allan Opsitnick
Opsitnick & Associates, Attorneys at Law 