If you need surgery or certain medical procedures, your doctor must give you detailed information about the treatment, alternatives and risks. This is called informed consent. Under certain circumstances, if your doctor failed to provide you with this information, you may be eligible for compensation.
Pennsylvania’s informed consent law is different from other states, such as New Jersey, because it is grounded in a battery claim. When most people think of battery, they think a punch. But any “offensive touch” can be a battery. Informed consent cases are different from medical malpractice cases, though you may have both claims against your doctor if you are injured. Due to Pennsylvania’s unique take on the law, it is critical to have a Pennsylvania lawyer who knowledgeable in Pennsylvania law, to handle your informed consent claim.
How Informed Consent Works in Pennsylvania
Informed consent claims in Pennsylvania date back to the 1930s. These claims were formalized in a 1963 Pennsylvania Supreme Court Opinion. In that case, the Court found that patients had a right to a certain amount and type of information prior to a surgical procedure. In the years since, both the Pennsylvania courts and Legislature have expanded the law and concept to include not only surgery, but certain other medical procedures as well.
- Surgery, including administration of related anesthesia
- Radiation and chemotherapy
- Blood transfusions
- Insertion of a surgical device or appliance
- Experimental medications or devices
- Use of approved medication or devices in an experimental manner
The informed consent statute states that you have a right to full information, in plain terms. The information includes:
- Information about alternative treatments and potential complications
If the patient is not able to understand, the information must be given to a family member or other responsible person. Informed consent is required prior to a covered treatment except in the case of an emergency. In addition, if a patient changes their mind, they have a right to withdraw consent and refuse to continue treatment. For minors, informed consent goes to the parent or guardian. Again, there is an exception for emergencies in which a delay of treatment may create a serious risk to the minor’s life or health.
Informed Consent v. Medical Malpractice
As noted, medical malpractice cases and informed consent cases are different in some ways and similar in others. It is common for lawsuits to include both informed consent and medical malpractice claims.
In both a medical malpractice case and a Pennsylvania informed consent case your lawyer must:
- Provide a certificate of merit.
- Use expert testimony to support the case.
- The expert testimony will come from a medical professional, most likely a doctor.
For an informed consent claim, your lawyer must:
- Prove that there was no informed consent.
- Show that the lack of information was a “substantial factor” in the your decision to have the treatment.
- In other words, that you would have chosen a different treatment, or no treatment at all, if you had the proper information.
- Present expert testimony discussing the risks of treatment, the potential alternative treatments, and the risks of those alternatives.
A key difference between informed consent and traditional medical malpractice claims is that your attorney does not have to prove that the lack of informed consent caused any injuries. This is because, as noted, informed consent claims in Pennsylvania are based on a battery theory, and battery is an intentional tort. Traditional medical malpractice cases, are based on a theory of negligence and so the required proof is different.
The standard for determining whether you received informed consent is the reasonable person standard. In other words, would another patient, in the same circumstances as you believe that they received informed consent based on the information provided.
In a medical malpractice case, your lawyer must prove:
- The doctor had a duty to you.
- The doctor breached that duty by violating the medical standard of care.
- The breach directly caused your damages.
Always Be Informed
A critical part of avoiding injury at the hands of a medical professional is to be informed about any procedure or surgery you are undergoing. An informed patient is a patient who is less likely to be injured. In addition, if you can, have someone with you when you speak to a doctor about procedures and surgery. It can be overwhelming to listen to a doctor when they are talking about your options and the risks that come with them. Having a companion with you can help to decrease any confusion.
Do You Have an Informed Consent Claim?
If you suffered an injury and the doctor failed to provide you with informed consent, please reach out to Lowenthal & Abrams. We have substantial experience with both medical malpractice and informed consent cases in Pennsylvania. The consultation is free and there is no fee unless we obtain compensation for you.