By Bill O’Boyle - [email protected]

State Supreme Court: Doctors can’t delegate getting informed consent of patients

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WILKES-BARRE — The Pennsylvania Supreme Court, on a 4-3 vote, has ordered a new malpractice trial for a woman badly injured during brain surgery at Geisinger Medical Center in Danville.

Pennsylvania’s highest court decided in favor of Megan Shinal of Wilkes-Barre, ruling a doctor has a personal duty to obtain a patient’s informed consent prior to surgery.

Attorney Melissa Scartelli said the ruling means a doctor cannot hand off to physician’s assistants or nurses the responsibility for explaining to patients the nature of the surgery, its risks, benefits and alternatives.

“This is an important victory not only for our client, but for all patients contemplating or undergoing surgery in Pennsylvania,” said Scartelli.

Scartelli said the ruling gives Shinal a new trial because the Supreme Court held the trial judge committed an error of law when he allowed the jury to consider information provided to her by her surgeon’s staff in deciding if her consent to surgery was “informed.” The trial was held in 2014. The Supreme Court made its ruling on the appeal Tuesday.

According to Scartelli, Shinal suffered catastrophic injuries during open surgery for a benign tumor in the pituitary region of her brain. Geisinger Medical Center’s Chief of Neurosurgery, Dr. Steven A. Toms, admitted his choice of surgery was aggressive, Scartelli said. She added that during the operation, Dr. Toms cut Shinal’s carotid artery, resulting in hemorrhage, stroke, brain injury and partial blindness.

During a malpractice trial, Scartelli said Shinal testified Dr. Toms spent limited time with her before surgery, and her questions were directed to the doctor’s staff. She also testified Dr. Toms did not inform her of other surgical alternatives which carried less risk.

“The court’s decision has nationwide implications for doctors and patients,” Scartelli said. “While physician’s assistants and other staff provide valuable health care services, they do not perform surgery and cannot substitute for the surgeon when having a life-and-death discussion about surgery.”

The Supreme Court majority reversed a Superior Court ruling that had found no error in a Montour County trial judge’s instruction to the jury that — in determining if Dr. Toms obtained informed consent — it could consider any information communicated to Shinal by any qualified person acting as Dr. Toms’ assistant.

When the malpractice action was initially brought to court, a jury returned a verdict in favor of Dr. Toms. Shinal then appealed that decision.

Geisinger responds

Donna Rae, Geisinger’s associate chief legal counsel of litigation services, provided the health system’s response to the Supreme Court’s ruling:

“We are happy to learn that the Supreme Court found that the trial court did not err in refusing to strike prospective jurors for cause based on their relationships to the case through their employer or their immediate family member’s employer, but disappointed with the court’s ruling on informed consent.

“The Court’s decision will impose a significant burden on physicians when it comes to giving informed consent. In this case, Dr. Toms had a direct dialogue and a two-way conversation with Ms. Shinal who subsequently called his office with a couple of questions that were answered by a physician’s assistant.

“The Supreme Court has held that it was an error for the trial court to instruct the jury that they could consider this subsequent conversation as part of the informed consent process as this is a non-delegable duty of the physician.”


By Bill O’Boyle

[email protected]

Reach Bill O’Boyle at 570-991-6118 or on Twitter @TLBillOBoyle.

Reach Bill O’Boyle at 570-991-6118 or on Twitter @TLBillOBoyle.