The Supreme Court of Pennsylvania Middle District (“Pennsylvania Supreme Court”) held in a case it decided on June 20, 2017 that a physician’s duty to provide information to a patient sufficient to obtain her informed consent is non-delegable: “we hold that a physician cannot rely upon a subordinate to disclose the information required to obtain informed consent. Without direct dialogue and a two-way exchange between the physician and patient, the physician cannot be confident that the patient comprehends the risks, benefits, likelihood of success, and alternatives.”
The Pennsylvania Supreme Court stated that “[i]nformed consent is a product of the physician-patient relationship. The patient is in the vulnerable position of entrusting his or her care and well-being to the physician based upon the physician’s education, training, and expertise. It is incumbent upon the physician to cultivate a relationship with the patient and to familiarize himself or herself with the patient’s understanding and expectations. Were the law to permit physicians to delegate the provision of critical information to staff, it would undermine patient autonomy and bodily integrity by depriving the patient of the opportunity to engage in a dialogue with his or her chosen health care provider. A regime that would countenance delegation of the informed consent process would undermine the primacy of the physician-patient relationship. Only by personally satisfying the duty of disclosure may the physician ensure that consent truly is informed.”
The Medical Care Availability And Reduction of Error (MCARE) Act
The Medical Care Availability and Reduction of Error (MCARE) Act defines informed consent as follows: (a) Duty of physicians.-Except in emergencies, a physician owes a duty to a patient to obtain the informed consent of the patient or the patient’s authorized representative prior to conducting the following procedures: (1) Performing surgery, including the related administration of anesthesia. * * * (b) Description of procedure.-Consent is informed if the patient has been given a description of a procedure set forth in subsection (a) and the risks and alternatives that a reasonably prudent patient would require to make an informed decision as to that procedure. The physician shall be entitled to present evidence of the description of that procedure and those risks and alternatives that a physician acting in accordance with accepted medical standards of medical practice would provide. * * * (d) Liability.- (1) A physician is liable for failure to obtain the informed consent only if the patient proves that receiving such information would have been a substantial factor in the patient’s decision whether to undergo a procedure set forth in subsection (a).
40 Pa.C.S. § 1303.504
The Pennsylvania Supreme Court held that under MCARE, “the duty to obtain a patient’s informed consent for the several enumerated procedures, including surgery, belongs to the physician. Section 504 does not merely require that the patient’s consent be informed; it specifically imposes the duty upon physicians to provide to the patient the requisite information and to obtain informed consent. Nothing in the plain language of MCARE suggests that conversations between the patient and others can control the informed consent analysis or can satisfy the physician’s legal burden. Indeed, Subsection 504(b) permits a physician to defend against an alleged failure to obtain informed consent by presenting evidence of the information that a physician acting in accord with established medical standards would provide. Again, the focus is upon the physician’s provision of information directly to the patient, not merely upon the patient’s receipt of such information from various sources.”
The Pennsylvania Supreme Court held “a physician may not delegate to others his or her obligation to provide sufficient information in order to obtain a patient’s informed consent. 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. The duty to obtain the patient’s informed consent belongs solely to the physician.”
Source Shinal v. Toms, J-106-2016
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