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Informed Consent Ruling May Affect Your Business

In a 4-3 decision, the Supreme Court of Pennsylvania, overturning a Superior Court’s order, ruled that a jury could not consider information provided by the physician’s qualified staff in deciding whether a physician obtained informed consent. 

In Shinal v. Toms, plaintiff Megan Shinal suffered from a recurrent non-malignant tumor that needed to be extracted from the pituitary region of her brain.  Shinal met with her physician, Steven A. Toms, M.D. for a twenty minute initial consult.  However, the surgical approach was not determined at this consult.  Shortly after the initial consult, Shinal spoke by telephone with a physician assistant of Dr. Toms who answered questions regarding the procedure.  Nearly one month later, Shinal met with the same physician assistant and signed an informed consent form.

During the surgery, Shinal’s carotid artery was perforated, resulting in hemorrhage, stroke, brain injury, and partial blindness.  Shinal alleged that Dr. Toms failed to obtain informed consent, explain the risks of surgery, or offer plaintiff a lower risk surgical option.  The trial court instructed the jury that they could consider any information communicated to Shinal by any qualified person acting as an assistant to Dr. Toms in their determination of whether informed consent was obtained. The Superior Court affirmed. 

While the Supreme Court devoted most of its 41 page opinion to whether Shinal was permitted to strike for cause, prospective jurors with familial, situational, or financial relationships with Dr. Tom’s employer, it also addressed whether a physician could delegate his duty to obtain informed consent.  The Court had previously ruled in Valles v. Albert Einstein Med. Ctr., 805 A.2d 1232, 1239 (Pa. 2002), that the duty to obtain informed consent rests solely upon the health care provider performing the procedure, and not the hospital.  Building on the Valles opinion, the Supreme Court explained that a physician cannot rely upon a subordinate to disclose the information required to obtain informed consent. 

While the medical field has seen a growth in the responsibilities delegated to mid-level providers utilized by physicians, the Shinal opinion serves as a warning to health care administrators that certain obligations of physicians cannot be delegated.

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About this Author

Kristen Wilson, Steptoe Johnson Law Firm, Professional Liability Litigation Attorney
Of Counsel

Kristen Andrews Wilson practices in the firm’s litigation department, focusing on medical professional liability and long term care defense, as well as general and complex civil litigation and insurance defense.