In an opinion authored by Justice David N. Wecht, the Supreme Court of Pennsylvania recently held that physicians cannot rely on their staff or subordinates to disclose the information required to obtain informed consent from a patient; the information must come directly from the physicians themselves.

In Shinal v. Toms,[1] Megan L. Shinal had treated with Steven A. Toms, M.D. for a recurring, non-malignant tumor in the pituitary region of her brain. She had had surgery years earlier to extract the tumor through her nose, but the surgeon was unable to remove the entire tumor. At the time she saw Dr. Toms, the tumor had grown and extended into vital structures of the brain, threatening her eyesight, carotid artery, and her pituitary and hormone function.

While discussing surgical options with Mrs. Shinal, Dr. Toms recalled Mrs. Shinal stating that she wanted to “be there” for her child, which he understood as meaning that she wanted him to attempt to remove the entire tumor if he thought he could do so with reasonable risk. He recalled advising her that subtotal resection would be safer in the short term, but total resection offered the highest chance for long-term survival. Mrs. Shinal decided to undergo surgery, but she disputed that the differences between subtotal versus total resection were explained to her.

The records following their discussion indicate that Mrs. Shinal spoke to Dr. Toms’ physician assistant, who answered questions about scarring, radiation, the craniotomy incision, and the date of the surgery. The physician assistant also took her medical history, conducted a physical, and provided her with information relating to the surgery. Mrs. Shinal signed an informed consent form for “a resection of recurrent craniopharyngioma”, which identified risks of pain, scarring, bleeding, infection, breathing problems, heart attack, stroke, injury and death.

Mrs. Shinal underwent an open craniotomy total resection of the brain tumor at Geisinger Medical Center in January 2008. During the surgery, Dr. Toms perforated her carotid artery, resulting in hemorrhage, stroke, brain injury, and partial blindness.

Mr. and Mrs. Shinal initiated a medical malpractice action in the Court of Common Pleas of Montour County against Dr. Toms, Geisinger Medical Center, and Geisinger Clinic, alleging that Dr. Toms failed to obtain Mrs. Shinal’s informed consent for the surgery.

The matter proceeded to trial. At the conclusion of trial, the trial court instructed the jury on informed consent. The instruction stated that the jury could consider any relevant information communicated to Mrs. Shinal by any qualified person acting as an assistant to Dr. Toms. During deliberations, the jury asked whether information conveyed to Mrs. Shinal by the physician assistant could satisfy informed consent requirements, to which the trial court responded by repeating its prior instruction. The jury returned a verdict in favor of Dr. Toms.

The Shinals appealed, asserting that the trial court improperly instructed the jury to consider information given to Mrs. Shinal by anyone other than Dr. Toms when determining informed consent. The Superior Court affirmed, and the Shinals appealed to the Supreme Court.

The Court addressed whether physicians may rely on their subordinates to provide information to patients necessary to obtain their informed consent. It noted that the trial court instructed the jury that it could consider relevant information communicated by “any qualified person acting as an assistant” to Dr. Toms. The Shinals argued that this instruction was a misstatement of the common law and conflicted with the MCARE Act, 40 P.S. § 1303.504.

The Court acknowledged that the standard of review for examining jury instructions is “limited to determining whether the trial court committed a clear abuse of discretion or error of law controlling the outcome of the case.” An erroneous charge is grounds for a new trial if, as a whole, it is inadequate, unclear, or has a tendency to mislead or confuse a material issue.[2]

The Court noted that the doctrine of informed consent is grounded in a patient’s right to autonomy. It recognizes the patient’s right to be informed of the risks, benefits, likelihood of success, and alternatives to a proposed course of treatment so that the patient may make an informed decision. The Court previously had held that this duty was non-delegable in Valles. The Court noted that a hospital cannot be liable for a physician’s failure to obtain informed consent because the physician, and not the hospital, has the education, training, and experience necessary to properly advise the patient of the risks specific to that patient’s medical history.

The Court held that, for the same reasons, “a physician cannot rely on a subordinate to disclose the information required to obtain informed consent. Without a direct dialogue and a two-way exchange between the physician and the patient, the physician cannot be confident that the patient comprehends the risks, benefits, likelihood of success, and alternatives.”

The Court further stated that this holding was consistent with the MCARE Act, Section 504 states:

(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.

The Court noted that Section 504 places the duty to obtain informed consent upon physicians. Nothing in the Act suggests that a patient’s conversations with anyone other than the physician can control the analysis or satisfy the physician’s legal burden. The focus is on what information a physician gives to the patient, not what information the patient received. Accordingly, the Court held that a physician’s duty to provide information to patients necessary to obtain their informed consent is non-delegable, overruling Foflygen v. Allegheny General Hosp.[3] and Bulman v. Myers[4] to the extent that they held otherwise. As a result, the Court remanded that case for a new trial.

The Court also addressed the issue of juror bias. For a discussion of its holding on that issue, please click here.

[1] No. 31 MAP 2016 (June 20, 2017).

[2] Citing Quinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1069 (Pa. 2006).

[3] 723 A.2d 705 (Pa.Super. 1999).

[4] 467 A.2d 1353 (Pa.Super. 1983).