Surgeons Must Provide Informed Consent Information to Their Patients Directly, Not Through Nurse or Other Employee
Unless it is an emergency, surgical patients in Pennsylvania must be informed of the nature of the surgery as well as the risks and alternatives in advance of their surgery by the surgeon personally, not his or her nurse or other employee. This is according to a recent ruling by the Pennsylvania Supreme Court that was issued on June 20, 2017, in Shinal v. Toms, M.D.
Pennsylvania statutory law requires the following:
(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
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. 40 Pa.C.S. Sec. 1303.504
Patients are entitled to ask questions of their surgeons in advance to be sure they are fully informed before signing the written consent to undergo the surgery.
The Court reasoned that it is only if the surgeon personally speaks to the patient directly that he or she can be sure the patient understands. This is not accomplished if the information is provided indirectly by way of those who work as assistants or employees of the surgeon.
This legal duty of the surgeon cannot be delegated to others. The Court holds:
Thus, we hold that 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. Shinal v. Toms, M.D.
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