Lawsuits for Doctor's Failure to Obtain Informed Consent
January 8th, 2020 | Nicole M. Santo
People experiencing medical issues are often faced with difficult decisions about how the problem should be treated. Before certain procedures/treatments are begun, the patient must provide written “informed consent.”
In order to obtain that consent, a physician in Pennsylvania must give their patients all the information that a reasonable patient would require to make an informed treatment decision. That information includes:
- the patient’s diagnosis, if known
- the description and goal of procedure/treatment and probability of success
- the risks posed by procedure/treatment
- alternatives to the proposed procedure/treatment
- the risks and benefits of refusing procedure/treatment
HKQ Law personal injury Attorney Nicole M. Santo points out that “informed consent involves more than simply providing information. It also requires understanding on the part of the patient.” A doctor’s disclosure must be communicated in a way that the patient can understand. Technical terminology should be avoided, if possible, or clearly explained. Patients must seek clarification when they don’t understand the information being presented.
When Informed Consent is Required
In Pennsylvania informed consent must be obtained for:
- surgical procedures
- administration of anesthesia during surgery
- administration of radiation
- administration of chemotherapy
- blood transfusions
- insertion of a surgical device or appliance
- experimental medications or devices
- use of approved medication or devices in an experimental manner
In all other situations, informed consent is not a requirement. (For example, Pennsylvania does not require informed consent for the intravenous administration of antibiotics, or the oral administration of prescription drugs.)
Exceptions for Patient Consent
There are two major exceptions to the concept of informed consent: emergency medical care and diminished patient autonomy. In the first instance, informed consent is not required as a delay of treatment may create a serious risk to the patient’s life or health. In the case of diminished patient autonomy, some people are considered incapable of providing informed consent due to their age or mental capacity. In such cases, the right to give such consent is transferred to parents or legal guardians.
In a 2017 case, Shinal v. Toms, the Pennsylvania Supreme Court ruled that informed consent requires direct communication between physician and patient, and contemplates a back-and-forth, face-to-face exchange. The physician who would be carrying out the procedure/treatment cannot delegate informed consent discussions or responsibilities to other physicians, nurses, residents, physician’s assistants, nurse practitioners or anyone else. The physician’s affirmative duty is non-delegable.
Patients in Pennsylvania have an absolute right to “medical self-determination.” That includes the right to make what might be considered “unreasonable” choices about their care. A patient also has the right to withdraw consent and refuse to continue treatment.
Informed Consent Lawsuits
Lawsuits based upon informed consent can be brought against a physician for not only failure to inform of risks, consequences and alternatives, but also for:
- performing additional procedures not consented to;
- attempting procedures not trained or credentialed in, and/or
- knowingly misrepresenting professional credentials, training or experience.
In Pennsylvania, failing to obtain informed consent before initiating a procedure/treatment is considered a form of battery, which involves unwarranted, unwanted or unauthorized touching. Because battery is an intentional tort, there is no need to prove that the physician was negligent. The plaintiff must instead show that there was no informed consent, and that the lack of information was a “substantial factor” in the decision, and you would have made a different decision if you had the proper information.
If you believe that you have undergone a procedure or treatment without providing the required informed consent and sustained injuries, call HKQ Law at (800) 760-1529 to speak with an experienced personal injury attorney.