One issue of controversy surrounding informed consent in Pennsylvania is whether a doctor must obtain informed consent from patients prior to surgery, as opposed to a non-doctor. Well, the Pennsylvania Supreme Court just settled that controversy: only a physician can obtain informed consent from the patient. It cannot be a non-physician member of the doctor’s staff. The opinion is called Shinal et al v. Toms. (We previously discussed informed consent for both Pennsylvania and New Jersey.)
Physicians Must Explain the Risks, Benefits, and Alternatives Directly to Patients
It is common for doctors to leave the task of explaining medical procedures to non-physicians. In fact, some doctor’s offices and hospitals have a specific department that obtains consent from patients. Under the PA Supreme Court’s ruling, any medical facilities which allow non-doctors to obtain informed consent will have to change their methods. In his opinion, Justice Wecht stated, “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.”
Why the Opinion Matters
It is difficult to overstate how important the opinion is for victims of medically caused injuries who did not receive proper informed consent. When a non-doctor explains a procedure to a patient, the patient often does not have the opportunity to ask questions and get the answers they need. Frequently, doctors are uniquely capable of providing the kind of information patients require to make an informed decision about whether to have surgery. When a non-doctor provides the consent form, many patients simply sign on the dotted line, not understanding that there may be better options for them than a proposed surgery or medical procedure. True informed consent requires that the patient understand the various risks, benefits and alternative treatments available to them.
The Informed Consent Statute
The statute on medical malpractice covers informed consent in Section 504. And in that statute, the first three words are “Duty of physicians.” The word physician is used throughout this portion of the statute. At no point does the statute state that it is permissible to delegate the duty to a third party. Informed consent is critical in aiding a patient’s choice about whether to undergo a medical procedure. The ability to ask questions from a knowledgeable physician is a key part of making sure the patient understands all of the risks, benefits, and alternatives of any such procedures.
What Does This Mean for You?
In the past, informed consent provided by a non-doctor was good enough. Now it is not. If you had a botched surgery, suffered serious injuries, and a medical doctor did not personally explain the risks, benefits, and alternatives, you may have an informed consent lawsuit. This is the case even if the injury you suffered is a known risk of the medical procedure.
Did Your Doctor Fail to Obtain Informed Consent?
Learn more about informed consent by reading our previous blog post on the topic. If, after reading these posts, you believe you have an informed consent case, please feel free to reach out to the attorneys at Lowenthal & Abrams. The call is free and there is no obligation.