Case Bulletin – The Pennsylvania Supreme Court Clarifies the Duty of Informed Consent
On June 20, 2017, the Pennsylvania Supreme Court addressed a trial court’s instructions to the jury related to informed consent in Shinal v. Toms, M.D., 31 MAP 2016 (Pa. 2017), ultimately overruling prior Superior Court holdings. In doing so, the Pennsylvania Supreme Court held 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.
In Shinal, Plaintiff Megan Shinal was referred to Dr. Steven Toms to address a recurrent, non-malignant brain tumor, causing severe headaches. On November 26, 2007, Ms. Shinal met with Dr. Toms to discuss treatment options, including surgical intervention. By the end of the meeting, Ms. Shinal agreed to undergo surgery. However, the surgical approach had not been finalized. Options included whether to proceed through the nose and sphenoid bone or through the skull and whether to remove the entire tumor. On December 19, 2007, Ms. Shinal spoke to Dr. Toms’ physician assistant by telephone about scarring, the craniotomy incision, and whether radiation would be necessary. On January 17, 2008, Ms. Shinal met with Dr. Toms’ physician assistant who obtained written informed consent for resection of recurrent craniopharyngioma with no explicit mention of the specific surgical approach. The written informed consent noted the risk of pain, scarring, bleeding, infection, breathing problems, heart attack, stroke, injury, and death. At trial, Ms. Shinal testified that she would have elected for subtotal resection over total resection as a safer, less aggressive approach. On January 31, 2008, Dr. Toms performed open craniotomy total resection of the tumor. However, during the procedure, he perforated Ms. Shinal’s carotid artery, leading to hemorrhage, stroke, brain injury, and partial blindness. The Shinals subsequently filed suit, alleging that Dr. Toms failed to obtain informed consent for the surgery and failed to advise Ms. Shinal of the subtotal resection option.
At the time of trial, the judge instructed the jury that it may consider relevant information communicated by any qualified person acting as an assistant to Dr. Toms when determining whether Dr. Toms obtained informed consent from Ms. Shinal. The jury returned a verdict in favor of Dr. Toms, which was affirmed by the Superior Court based on its prior decisions.
The Supreme Court noted that prior Superior Court case law permitted informed consent to be predicated on pretreatment information relayed by the physician or another qualified person such as a nurse or other assistant. Bulman v. Myers, 467 A.2d 1353 (Pa. Super. 1983); Foflygen v. Allegheny General Hosp., 723 A.2d 705 (Pa. Super. 1999). The Bulman court reasoned that the primary interest regarding informed consent is to have the patient informed of all material facts from which she can make an intelligent choice as to a course of treatment. 467 A.2d at 1355.
However, the Supreme Court noted that in the time since the Bulman and Foflygen decisions were rendered, the MCARE Act has been established and similar informed consent issues were addressed in Valles v. Albert Einstein Med. Ctr., 805 A.2d 1232 (Pa. 2002). Under the MCARE Act, a physician is tasked with obtaining a patient’s informed consent for several enumerated procedures, including surgery. 40 Pa. C.S. § 1303.504. The Supreme Court specifically reasoned that there is no indication within the plain language of section 504 to suggest that conversations between a patient and others may control the informed consent analysis or satisfy a physician’s legal burden. Further, the Valles court held that the duty to obtain informed consent rests solely with the physician and is non-delegable. Valles, 805 A.2d at 1239. Thus, the Supreme Court explicitly held that a physician cannot rely upon a subordinate to disclose the information required to obtain informed consent, reasoning that without a two-way exchange between physician and patient, the physician cannot be confident that her patient understands the risks, benefits, and alternatives associated with treatment.