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Lawsuits for Doctor's Failure to Obtain Informed Consent

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.

Doctor’s Duties

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.

Patient’s Rights

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.

About HKQ Law

Hourigan, Kluger & Quinn is considered one of the top civil litigation and commercial law firms that has had the privilege of representing more families in the courtroom than any other NEPA firm. The attorneys at HKQ Law have been honored as Super Lawyers, Best Lawyers, Best Law Firms by US News and World Report, and have received the AV Preeminent Rating by Martindale-Hubbel. HKQ Law was recently recognized for one of the top 20 Verdicts in Pennsylvania.

The firm’s Personal Injury Team, led by Attorney Joe Quinn, Jr., has won some of the largest verdicts and settlements in the region's history. The Personal Injury Team focuses on a wide array of personal injury claims and civil litigation, including medical malpractice, auto and truck accidents, aviation accidents, unsafe vehicles, dangerous or defective products, workplace injuries (worker's compensation), construction site accidents, claim denials by insurance companies, dangerous drugs, defective children's products, nursing home abuse and neglect, and falls due to unsafe conditions (slip and fall).

Attorney Joseph A Quinn, Jr. is one of only 100 attorneys in the United States (and one of only three in Pennsylvania) honored with membership in the Inner Circle of Trial Advocates, and one of only 500 attorneys worldwide chosen to be a Fellow of the International Academy of Trial Lawyers. He has been a Pennsylvania Super Lawyer every year since the program began and has been listed in The Best Lawyers in America every year since the publication was established in 1987. Best Lawyers also named him top personal injury attorney for Northeastern Pennsylvania and the Lehigh Valley. In addition, Best Lawyers, in conjunction with U.S. News & World Report, has designated HKQ a Tier 1 Best Law Firm across multiple categories in Northeastern Pennsylvania and the Lehigh Valley.

Since the inception of the firm, the Commercial / Corporate Team led by Attorney Allan Kluger has provided comprehensive, integrated legal services to many of Northeastern and Eastern Pennsylvania's largest corporations, businesses, banks, non-profits and institutions, handling matters involving labor and employment, wills, trusts and estate planning, estate administration, elder law, commercial transactions, residential and commercial real estate, zoning, land use and development, telecommunications, mediations and arbitrations, commercial litigation, title insurance, business planning and business succession, corporate/business structuring, employment discrimination law for employers, banking, creditor’s rights, finance, lender liability defense, covenants not to compete, construction law, mergers and acquisitions and other business matters.

Additional information can be found at or by calling (800) 760-1529.



As Hourigan, Kluger and Quinn addresses the concerns raised by COVID-19, the health and safety of our clients, employees and friends of the firm remain our top priority.

These are very difficult and scary times and we hope that you and your loved ones are safe and symptom free. We recognize that so many of you are understandably anxious about your health, the economic impact of this pandemic and all of the consequences of social isolation.

We also recognize that many of you are anxious about how the coronavirus is impacting the Court systems, our firm and your cases. Although all of our offices are closed, our firm has remained fully operational and we have initiated procedures that allow all of our attorneys and staff to work remotely from their homes. Each of us and our staff will respond to any emails and calls about your cases as quickly as possible.

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