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Archive November 2017 XVIII, No. 11

Medical Malpractice: Pa. Court: Docs Can't Delegate Informed Consent

Pennsylvania case may have broad implications nationwide.

Rafael Villalobos Jr

Rafael Villalobos Jr, JD


informed consent DOCS CAN'T DELEGATE Only a physician can obtain informed consent, the Supreme Court of Pennsylvania has ruled.

Beleaguered physicians, already fighting to find time to fulfill all of their obligations, have been hit with another haymaker — a shocking decision by the Supreme Court of Pennsylvania that prohibits anyone but a doctor from securing informed consent. In Shinal v. Toms (, the court decided that in securing informed consent, doctors may no longer delegate to a nurse, a PA, a resident, another doctor or anyone else.

"Informed consent," it says, "requires direct communication between physician and patient, and contemplates a back-and-forth, face-to-face exchange." Patients are likely to have questions, the court added, questions "the physician must answer personally before the patient feels informed and becomes willing to consent."

Never mind that in many professions, including — and somewhat ironically — the business of law, experienced practitioners (including judges) routinely rely on highly educated and well-trained assistants to help them manage their workloads.

Never mind that informed consent has traditionally been obtained by assistants who not only understand the procedures they're explaining, but who also know the surgeon very well, and know exactly what that surgeon likes to communicate to patients. Never mind that many hospitals, surgery centers and surgeons use pre-printed materials and pre-produced videos to provide patients with a general understanding of procedures, risks and alternatives. And never mind that great care goes into the production of those materials, with a goal of making sure laypeople can understand and comprehend those risks and alternatives.

The case in question involved a woman who'd had surgery to remove a benign, but growing and potentially life-threatening, brain tumor. Her carotid artery was perforated during the surgery, leading to hemorrhage, stroke, brain injury and partial blindness.

There was no question that she'd discussed some of the risks with the surgeon beforehand (she recalled "coma and death"), but the parties disagreed as to whether they'd discussed alternatives. The surgeon testified that he'd reviewed the alternatives, risks and benefits of total versus subtotal resection, and that he informed the patient that while a less aggressive approach was safer short-term, he felt that the tumor was more likely to grow back if she opted for subtotal resection.

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