May 19, 2019

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Informed Consent Must Be Obtained by Physicians, PA Supreme Court Rules

Late last month, the Pennsylvania Supreme Court ruled that a jury may only consider informed consent obtained by a physician – consent obtained by an intermediary party such as a staff member should thus be excluded from a jury’s deliberations. In their 4-3 decision, the Justices overturned a Superior Court ruling that a Montour County trial judge was right in instructing the jury to consider any information communicated by a professional staff member working under the physician. Additionally, the state’s high court issued a decision on how a juror’s employment relationship with a defendant should affect the selection process.

In the end, the Court allowed a retrial for plaintiff Megan Shinal, who, after undergoing brain surgery, found out her carotid artery was perforated. Shinal went to the Geisinger Clinic in Danville where Dr. Steven A. Toms, the chief surgeon, removed a non-malignant tumor from the pituitary region of her brain.

Majority Opinion

Justice David N. Wecht wrote the opinion for the majority and was joined by Kevin M. Dougherty and Christine L. Donohue. Justice Debra Todd joined the majority, but only in the informed consent ruling.

The Court had previously decided in Valles v. Albert Einstein Med. Ctr. “that a medical facility cannot be held vicariously liable for a physician’s failure to obtain informed consent.” Building on that decision, Wecht found that a doctor should not delegate the responsibility of obtaining informed consent, saying “Informed consent requires direct communication between physician and patient, […] which might include questions that the patient feels the physician must answer personally before the patient feels informed and becomes willing to consent.”

Dissent

In his dissent, Justice Max Baer argued that “there is nothing in the law of this commonwealth precluding a physician from utilizing his qualified staff to aid in his duty to obtain a patient’s informed consent.” Baer stated that a physician could be found liable “if qualified staff is somehow negligent in aiding a physician in informing a patient’s consent” and that negligence “results in the failure to obtain the patient’s informed consent.”

Baer also thought the majority’s ruling could complicate doctors’ daily activities. He wrote, that the ruling “improperly injects the judiciary into the day-to-day tasks of physicians such as Dr. Toms and fails to acknowledge the reality of the practice of medicine.”

A Divided Court

The Court was divided on whether an (indirect) employment relationship should affect jury selection.

During the jury selection process the plaintiffs attempted to strike four prospective jurors for having ties to Geisinger, but the Court wouldn’t allow it after conducting its own investigation. So the Shinals were forced to use their four peremptory challenges to dismiss the jurors in question. When plaintiffs appealed the verdict for the defendant, they argued that certain jurors made it through the selection process that had “familial, situational or financial relationships” with the defendant. Thus, according to plaintiffs, the Court should have allowed them to dismiss jurors with ties to the defendant.

The Superior Court affirmed the trial court’s decision, pointing out that there was no substantial link between the defendant and the jurors in question. Additionally, Geisinger was no longer a defendant, so even if a link could be established between the jurors and Geisinger, it wouldn’t have mattered.

Wecht, who was joined by every Justice except Todd, upheld the lower court’s ruling, saying “The cause of action against Dr. Toms alleged failure to obtain informed consent. The claim did not encompass any misconduct by any Geisinger entity.” Todd disagreed in a dissenting and concurring opinion, arguing that a juror’s perceived relationship should be prioritized over his or her actual relationship with the defendant.

Additionally, Justices fractured over the question of how an appellate court should review a trial court’s decision to strike or not strike prospective jurors. Wecht argued that “the trial court retains discretion to explore and assess the relevant relationship presented” because that court has heard the questions and answers leading to the decision. Baer countered Wecht, arguing that the appellate court “should review such decisions for an abuse of discretion [by the trial court].”

Win-Win

According to Melissa Scartelli, who represented the plaintiffs, the Court’s decision is “a win-win for patients and doctors” because it will reduce the possibility for miscommunication between doctors and patients.

About Sean Lally

Sean Lally holds a BA in Philosophy from Temple University where he also studied theatre for several years. Between 2007 and 2017, he worked as a professional actor for several regional theater companies in Philadelphia, including the Arden Theatre Co., EgoPo Productions, Lantern Theater and the Bearded Ladies. In 2010, Sean co-founded Found Theater Company, an avant-garde artist collective with whom he first started to cultivate an identity as a writer.

Over the past few years, Sean has been working as a content writer, focusing primarily on the ways in which unequal power distribution can negatively affect consumers, workers and “everyday people,” more broadly. He writes for a number of websites including AccidentAttorneys.org, PersonalInjury.com, AmericanLegalNews.com and others.