Originally published by Max Mitchell in The Legal Intelligencer
August 4, 2017
Some attorneys are saying a new ruling on informed consent will sow confusion in the medical industry and lead to an uptick in legal disputes. Others say it just clears up conflicting case law and aids in reducing the number of medical malpractice claims in Pennsylvania. But one thing is for sure—attorneys in the Keystone State are talking about the decision in Shinal v. Toms.
The state Supreme Court’s ruling was issued June 20, and what has grabbed the attention of attorneys across Pennsylvania is the holding that informed consent requires direct communication between doctors and patients. Or, as Justice David Wecht said in the 41-page majority opinion, “a physician’s duty to provide information to a patient sufficient to obtain her informed consent is non-delegable.”
“It remains to be seen whether it will have much of an impact,” Margolis Edelstein attorney Michael Badowski said. “But I know there’s a bunch of hoopla over this decision that I’ve been getting from my peers.”
In Shinal, the high court on a 4-3 vote granted a new trial to plaintiff Megan Shinal, who underwent brain surgery performed by defendant Dr. Steven A. Toms, the chief of neurosurgery at Geisinger Clinic in Danville, and suffered a perforated carotid artery.
The majority reversed a Superior Court ruling upholding a Montour County trial judge’s instruction saying jurors, in determining whether Toms obtained informed consent, could consider any information communicated to Shinal by any qualified person acting as Toms’ assistant.
“Informed consent requires direct communication between physician and patient, and contemplates a back-and-forth, face-to-face exchange,” Wecht said. “The duty to obtain the patient’s informed consent belongs solely to the physician.”
John Conti, who chairs Dickie, McCamey & Chilcote’s medical malpractice defense group, said the ruling was a “dramatic shift in thinking” because doctors often rely on nurses, physicians’ assistants, and even videos and pamphlets for establishing informed consent. The result, he said, could mean increased patient confusion, and doctors spending more time explaining procedures rather than treating patients, which, he said, could lead to increased medical costs.
One thing Conti said he has already started to see is an uptick in informed consent claims.
“Plaintiffs are taking advantage of the decision to now raise informed consent claims in cases based on, shall we say, what was heretofore regarded as a technicality,” he said.
The ruling, he said, puts too much emphasis on who is providing the information, rather than determining whether the patient was adequately informed.
Badowski agreed.
“Oftentimes patients are more inclined to speak and ask questions of the doctor’s nurses and physician’s assistants and nurse practitioners, for any number of reasons. They may get awestruck by the surgeries and don’t think to ask questions,” Badowski said. “The focus should be on the information.”
Although Conti was the only attorney to say he had already seen an increase in the filings, the attorneys all predicted the ruling will lead to an uptick in informed consent claims—at least in the short term.
Schmidt Kramer attorney Scott Cooper, who represents plaintiffs, said the ruling will likely cause a temporary uptick in claims, but that having more doctors addressing patients directly will ultimately lead to fewer misunderstandings and legal disputes.
“I think it’s going to reduce litigation to a certain extent,” Cooper said.
Plaintiffs-side attorneys characterized the opinion as more of a clarification of conflicting case law from the Superior Court, and a means of bringing informed consent principles in line with the Medical Care Availability and Reduction of Error Act.
“Now it’s clear the important information has to come directly from the physician to the patient and it can’t be delegated,” Joseph Melillo of Navitsky, Olson & Wisneski said. “Informed consent requires direct communication, a real back-and-forth.”
In terms of the limits of the decision, Conti noted that the case arose out of an extremely complicated surgery that likely required more discussion about the risks and benefits than a more routine procedure, and Pittsburgh attorney John Gismondi, who represents plaintiffs, noted that the ruling largely focuses on what testimony would be allowed at trial.
A doctor’s use of literature and videos adds a wrinkle to the consideration as well.
“If you had the client watch a video, I don’t think that comes in because that’s not a doctor speaking. But then, suppose the patient watches a video and then you have a surgeon come in say, ‘You saw the video. Do you have any questions?'” Gismondi said. “I wonder if that would change the result.”
Based on conversations with several attorneys, others are wondering that as well.