The Right Choice?

The Right Choice? Mixed feelings about a recent informed consent court decision


 

On June 20, 2017, the Supreme Court of Pennsylvania ruled on a case that may have significant implications for surgical informed consent.

Although the legal complexities of the case might be interesting to some, what got my attention was the question of whether a surgeon can delegate the informed consent discussion with a patient to someone else.

Dr. Peter Angelos
Dr. Peter Angelos
The case, Shinal v. Toms, involved a malpractice claim arising from a neurosurgical procedure. Megan Shinal had met with Steven Toms, MD, to discuss removal of a benign pituitary tumor (“Shinal vs. Toms: It is now harder to get informed consent,” ACS Surgery News, Sept. 10, 2017). Apparently several options for the surgical approach were discussed at that consultation and Ms. Shinal had reportedly agreed to have surgery.

A few weeks later, the patient had a phone conversation with Dr. Tom’s physician assistant (PA) who answered several additional questions Ms. Shinal had about the surgery. Approximately one month later, the patient met with the same PA and had a preoperative history and physical examination and the informed consent form was signed.

About 2 weeks after that, the patient had an open craniotomy with total resection of the tumor. Unfortunately, the procedure was complicated by bleeding that resulted in stroke, brain injury, and partial blindness. Ms. Shinal and her husband sued Dr. Toms for malpractice, and included in the suit was a claim that Dr. Toms failed to obtain informed consent from Ms. Shinal.

At the original trial, the jury was instructed by the judge to consider information given to Ms. Shinal both by Dr. Toms and his PA as included in the informed consent process. The jury found in favor of Dr. Toms and the patient then appealed to the Pennsylvania Superior Court which upheld the decision. The case was then appealed to the Pennsylvania Supreme Court, which specifically addressed the issue of whether the informed consent discussion must be performed by the surgeon or can be delegated to others.

Several groups, including the American Medical Association, filed briefs in the case supporting Dr. Tom’s claim that the information that is conveyed in the informed consent process is what is important rather than exactly who provides that information to the patient. For many, this case seemed to be relatively straightforward. The surgeon had discussed the operation with the patient, she had agreed, and then in several additional conversations with the surgeon’s PA, the patient’s additional questions had been answered and the patient had willingly signed the informed consent document.

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