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When a patient agrees to surgery or another serious medical procedure, that decision should be based on clear information about what is being recommended, why it is being recommended, what the possible risks are, and whether there are other reasonable options.
In Pennsylvania, this issue falls under informed consent. For many patients, concerns about informed consent only arise after something goes wrong. A complication develops, recovery is much harder than expected, or the patient later learns that another treatment option may have been available. At that point, an important question often follows: was the patient given enough information before the procedure to make an informed decision?
Informed consent is the process of giving a patient enough information to make a knowledgeable decision about certain medical treatment. Under Pennsylvania law, informed consent applies to specific procedures, including surgery and related anesthesia, chemotherapy, radiation, blood transfusions, the insertion of a surgical device or appliance, and the use of an experimental medication, device, or procedure.
The purpose of informed consent is to protect a patient’s right to decide what happens to their own body. That decision depends on understanding the material risks, expected benefits, and reasonable alternatives before the procedure begins.
This question requires a careful answer because Pennsylvania law has changed over time.
In 2017, the Pennsylvania Supreme Court decided Shinal v. Toms, a case that emphasized the importance of direct communication in informed consent discussions. That decision was widely understood to mean that a physician could not fully rely on staff members to provide all of the necessary information to the patient.
However, Pennsylvania law later changed. Under the current version of Section 504 of the MCARE Act, informed consent for covered procedures may be obtained by the physician or by another medical practitioner authorized under the statute. The law also states that the patient may ask that the physician answer questions about the procedure, its risks, and alternatives.
As a result, the most accurate answer today is that the doctor does not always have to be the only person who explains procedure risks in Pennsylvania. In some situations, another authorized medical practitioner may handle that discussion. Even so, the central issue remains whether the patient received a clear explanation of the material risks, expected benefits, and reasonable alternatives before agreeing to the procedure.
Many people assume that once a consent form is signed, the issue is settled. That is not always the case.
A signed form may show that paperwork was presented, but it does not necessarily prove that the patient understood the information or had a fair chance to ask questions. Problems may arise when the discussion happens moments before the procedure, when the patient is medicated or overwhelmed, when serious risks are described only in vague terms, or when reasonable alternatives are not meaningfully discussed.
Informed consent is supposed to involve communication, not just documentation. If the explanation was rushed, incomplete, or confusing, the consent process may be called into question.
A proper informed consent discussion should include practical, understandable information that a reasonable person would want to know before making a decision.
Patients should be told about important risks that could affect whether they would agree to the procedure. This may include serious complications, more common adverse outcomes, or other risks that could reasonably matter to the patient’s decision.
Depending on the circumstances, that could involve risks such as infection, nerve damage, organ injury, stroke, infertility, internal bleeding, or other major complications. Not every remote possibility has to be listed in detail, but material risks should not be glossed over.
Patients should also understand why the procedure is being recommended. Is it expected to cure a condition, reduce symptoms, prevent a condition from worsening, or provide diagnostic information? If the likely benefit is limited, uncertain, or temporary, that may be important to the patient’s decision-making.
Alternatives are a critical part of informed consent. Depending on the medical situation, alternatives could include a different procedure, medication, physical therapy, monitoring the condition, delaying intervention, or seeking additional testing first.
A patient who later discovers that another reasonable option existed may understandably question whether the consent discussion was complete.
A bad medical result does not automatically mean there was a failure of informed consent. Even appropriate treatment can carry real risk, and some complications can happen without negligence.
The legal issue is whether the patient was denied information that would have mattered to the decision to proceed. Under Pennsylvania law, liability may arise when the missing information would have been a substantial factor in the patient’s decision whether to undergo the procedure.
In these cases, several questions may become important:
Pennsylvania informed consent law is intended to protect a patient’s ability to make an informed decision before undergoing certain procedures. Whether the discussion came from the doctor or another authorized medical practitioner, the question is whether the patient received the information needed to understand the risks, benefits, and alternatives.
If you or someone you love underwent a medical procedure and later learned that important risks or alternatives may not have been clearly explained, it may be worth having the situation reviewed. Lowenthal & Abrams, P.C. helps patients and families understand whether failures in communication may have contributed to preventable medical harm. Contact us for a free consultation.
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