A physician cannot perform a surgery or other medical procedure on a patient without first obtaining the patient’s informed consent. Informed consent means that the patient was advised of the risks, benefits, and alternatives to the procedure and, knowing these, made the decision to undergo the procedure. A physician can be legally liable where he or she fails to obtain a patient’s informed consent before performing a medical procedure.

In a recent medical malpractice action, the Pennsylvania Supreme Court held that a physician’s duty to provide information to a patient sufficient to obtain her informed consent is non-delegable. Thus, conversations between the patient and members of the physician’s staff will not suffice. The duty to obtain a patient’s informed consent for a major medical procedure belongs to the physician, who must inform the patient about the risks, benefits, likelihood of success, and alternatives.

The decision in Shinal v. Toms will likely impact the manner in which physicians practicing throughout Pennsylvania obtain informed consent from their patients.

In Shinal, the plaintiff patient underwent total resection of a brain tumor. During the operation, the defendant physician perforated the patient’s carotid artery, which resulted in hemorrhage, stroke, brain injury, and partial blindness. Prior to the procedure, a physician’s assistant had provided information about the procedure to the patient and obtained a signed informed consent form. However, the plaintiff claimed the physician never informed her of the risks associated with the surgery or offered a lower risk surgical alternative, followed by radiation. The jury was instructed that they could consider information communicated to the patient by the physician’s assistant in determining the informed consent issue. The jury subsequently entered a verdict in favor of the defendant physician.

On appeal, the plaintiff patient asserted that the jury charge misstated the common law as explained in Valles v. Albert Einstein Med. Ctr. and conflicted with the Medical Care Availability and Reduction of Error Act (MCARE).

In Valles v. Albert Einstein Med. Ctr. the Court held that a hospital cannot be liable for a physician’s failure to obtain informed consent. Pursuant to Valles, the duty to obtain a patient’s informed consent is a non-delegable duty owed by the physician conducting the surgery or treatment.

Relying on Valles, the Court held that a physician cannot rely upon a staff member to disclose the information required to obtain informed consent from a patient. “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 Shinal Court noted that its account of the common law under Valles is consistent with the plain language of the MCARE Act’s codification of informed consent.

The Court thus found it was error for the trial court to instruct the jury that it could consider information provided by the defendant physician’s staff when deciding the informed consent claim. Because the physician’s duty to provide information to a patient to obtain informed consent is non-delegable, the Court reversed the order affirming the judgment entered in favor of the defendant physician and remanded for a new trial.

Following this decision, physicians providing medical services in Pennsylvania should not delegate to staff members the task of obtaining consent from patients for major medical procedures or surgery.