June 29, 2017
Supreme Court of Pennsylvania Renders Decision on Informed Consent
On June 20, the Supreme Court of Pennsylvania ruled in Shinal vs. Toms that only a physician can obtain informed consent based on the Medical Care Availability and Reduction of Error (MCARE) Act of 2002. The ruling also outlines that a physician cannot rely upon staff to disclose sufficient information required to obtain a patient’s informed consent.
The duty to obtain a patient’s informed consent is a non-delegable duty, the Court ruled, belonging solely to the physician conducting the surgery or treatment. The Court found no provisions in the MCARE Act allowing for information given by a physician’s staff to satisfy the physician’s burden to obtain informed consent.
Section 504 of the Medical Care Availability and Reduction of Error Act, 40 P.S. § 1303.504(a), specifically states:
“A physician owes a duty to a patient to obtain Informed Consent of the patient or the patient’s authorized representative prior to the conducting the following procedures:
- Surgery, including the related administration of anesthesia;
- Administering radiation or chemotherapy;
- Administering a blood transfusion and all blood products;
- Inserting a surgical device or appliance; and
- Administering an experimental medication, using an experimental device or using an approved medication or device in an experimental manner.”
Be advised that with this ruling, the ability for PAs, NPs, mid wives and other practitioners to obtain informed consent is in serious question. We recommend that you discuss this situation with your organization’s legal affairs and medical staff departments, as well as your supervising physician. The Hospital & Healthsystem Association of Pennsylvania (HAP) and the Pennsylvania Medical Society (PA Med. Soc.) have notified their constituents of the Supreme Court of Pennsylvania’s decision. Hospitals will in all likelihood be revising their informed consent policies to reflect this ruling.
PSPA, AAPA, PA Med. Soc. and HAP are analyzing the impact of this ruling on the Pennsylvania health care environment and are exploring opportunities for legislative relief.
**Disclaimer: The PSPA is not a legal entity and any information given is not meant to construe a legal opinion or recommendation. Your situation may be unique and different than others, therefore, we recommend you consult formal legal counsel for any legal advice.