New Pennsylvania Law – Physicians Themselves MUST Obtain Patient’s Consent

Posted By: Tony Baratta | August 18th, 2017

Whenever you are being offered the choice of a medical treatment, you are entitled to know all the risks, benefits and alternatives.  The law in Pennsylvania now requires that the treating physician is responsible to do this and is not permitted to delegate that responsibility. Surgeons can no longer rely on their staff to obtain informed consent to perform surgery.

A physician must obtain a patient’s consent for any kind of surgery, including:

  • administration of anesthesia
  • administering radiation
  • administering chemotherapy
  • a blood transfusion
  • the use of an experimental medication
  • the insertion of a surgical device or appliance
  • the use of an experimental device
  • the use of an approved medication or device in an experimental manner

The patient’s consent must be informed.  That means that a patient cannot make an informed decision unless the physician explains the risks that a patient would need to know to make an informed decision.  A patient must be given a description of the proposed medical treatment and have been informed about the risks of the treatment.  The patient must also be informed of the viable alternatives that someone would consider important to know in order to make an informed decision about whether or not to undergo the treatment.

A recent Pennsylvania Supreme Court decision (June 20, 2017), Shinal v. Toms, has, for the first time, determined that a physician cannot delegate this obligation to obtain informed consent.

In writing for the Court majority, Justice David Wecht wrote “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.”  He went on to say “the duty to obtain the patient’s informed consent belongs solely to the physician.”  In so deciding, the Pennsylvania Supreme Court has determined that a physician is not permitted to utilize his staff persons (nurses, physician’s assistants) to aid in the physician’s duty to obtain a patient’s informed consent.

Whenever you are being offered the choice of a medical treatment, you are entitled to know all the risks, benefits and alternatives from your treating physician – it is the law in Pennsylvania!


About the Author

Anthony J. Baratta (Tony) is a trial attorney. He has tried more than 50 cases to Juries in State and Federal Courts and has litigated thousands of personal injury and medical malpractice cases in his 30-year career. Tony is the founding partner of Baratta, Russell, & Baratta and an active board member of the Pennsylvania Brain Injury Association (BPIA). Tony is also on the board for the Philadelphia VIP and performs pro bono work for the Laurel House, a non-profit for victims of domestic abuse. In addition, Tony is a member of the Million Dollar Advocates Forum for trial attorneys, voted one of Philadelphia’s Super Lawyers for the past 14 years, and a 2018 recipient of the First Judicial District Pro Bono Award for the Civil Trial Division.

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