The Pennsylvania Supreme Court issued a sweeping new decision that stands to dramatically change the way physicians obtain informed consent in Pennsylvania. In Shinal v. Toms, 31 MAP 2016 (June 20, 2017) (Wecht, J.) the Supreme Court held that physicians must personally deliver information to their patient and personally obtain their patient’s consent in order to discharge their duties under Pennsylvania’s informed consent law.

Shinal involved claims of lack of informed consent against Steven A. Toms, M.D., Director of the Department of Neurosurgery at Geisinger Medical Center. Plaintiffs, Megan L. Shinal, and her husband, asserted that Dr. Toms failed to obtain Mrs. Shinal’s informed consent before performing brain surgery, even though all parties recognized that Megan Shinal signed a consent form before the surgery took place. The trial court instructed the jury that it could consider information provided to Mrs. Shinal by Dr. Toms’ “qualified staff” in deciding whether consent was appropriately obtained.

The Supreme Court disagreed. In a 41-page opinion, the Court held that physicians may not rely upon subordinates to disclose information required to obtain informed consent. To allow physicians to delegate in this fashion, the Court held, “would undermine patient autonomy and bodily integrity by depriving the patient of the opportunity to engage in a dialogue with his or her chosen health care provider.” Because it found that the informed consent instruction was erroneous, the Court concluded that the defense verdict in favor of Dr. Toms could not stand. The Court therefore remanded the matter for a new trial.

In a strongly-worded dissenting opinion, Justice Max Baer argued that the Majority’s decision that physicians may not use their qualified staff members to assist in providing necessary information and obtaining patient informed consent finds no support in case law or in the MCARE Act, 40 P.S. 1303.504(b).

According to Justice Baer, “the [MCARE] act conspicuously does not mandate that only physicians themselves can provide information to patients to inform their consent …[t]he legislature could have, but did not, expressly require that only physicians can provide patients with information regarding informed consent.” Justice Baer also expressed practical concerns about the decisions’ far-reaching, negative effects, noting that, to avoid legal liability, physicians “now must be involved with every aspect of informing their patients’ consent, thus delaying seriously ill patients access to physicians and the critical services they provide.”

The practical concerns addressed by Justice Baer have been echoed by physicians and hospitals throughout the Commonwealth of Pennsylvania. The Pennsylvania Medical Society, which had filed an amicus brief in the matter, issued a statement on its website acknowledging that Shinal may trigger a dramatic shift in practice. The Medical Society noted that physicians can “seemingly no longer rely upon the aid of their qualified staff in the informed consent process” which may mean that staff can no longer assist with providing information or answers to follow-up questions patients may have.

Until a legislative or other solution to the issues raised by Shinal is reached, physicians should be mindful that the duty owed to a patient on whom the physician is to perform a procedure requires the physician, not the physician’s intermediary, to obtain the patient’s informed consent.

Maureen Murphy McBride is co-chair of Lamb McErlane’s Appellate Department and is a member of Litigation Department and the Firm’s Executive Committee. She concentrates her practice on appellate law and litigation in state and federal courts. She can be contacted at mmcbride@lambmcerlane.com , 610-701-4410.