The Strange Case of the Overly Informed Surgical Consent

The Pennsylvania Supreme Court’s cast its June 20 opinion as standing for the proposition that a surgeon can’t delegate his duty of obtaining informed consent to anyone else—his physician assistant in the case at hand. But the opinion can also be read to say that after a surgeon has personally provided all the information necessary for informed consent, no one on his staff can answer questions the patient later asks or provide further information. In effect, the additional information cancels rather than supplements the information already provided by the surgeon.

Dr. Toms personally met with Megan Shinal for 20 minutes to discuss removing a brain tumor. At trial he testified that they discussed alternative approaches, including risks and benefits of total versus partial resection, and that she decided on a total resection. But the Supreme Court opinion says that Megan had decided to undergo surgery but hadn’t decided on which approach.

Megan testified that later she called Dr. Toms’s office and asked his physician assistant (1) about scarring, (2) whether radiation would be necessary, and (3) the date of the surgery. The medical record indicates that the assistant also answered questions about the craniotomy incision. Later Megan met with the assistant, who provided information about the surgery, and Megan signed a consent form confirming that advantages and disadvantages of alternative treatments had been explained.

During the procedure Dr. Toms perforated Megan’s carotid artery, causing serious damage. In the resulting lawsuit Megan claimed that Dr. Toms had failed to explain the risks or to offer the lower risk alternative of partial resection followed by radiation.

The trial court instructed the jury that in deciding whether Dr. Toms had met his informed consent duty, it could consider any relevant information “communicated … by any qualified person acting as an assistant” to him. The jury found in favor of Dr. Toms. When Megan appealed claiming the instruction was erroneous, the Superior Court affirmed.

But the Supreme Court reversed and remanded for a new trial, holding that a physician “cannot rely upon a subordinate to disclose the information required to obtain informed consent” and that “informed consent requires direct communication between physician and patient, and contemplates a back-and-forth, face-to-face exchange.”

Some of the facts are disputed, but it appears that in their 20-minute meeting Dr. Toms may very well have provided, personally and face-to-face, all the information necessary for informed consent. If so, his error wasn’t in failing to personally provide the required information. Rather, his error was in later allowing a staff member to answer additional questions and provide further information.

Should he have personally answered Megan’s questions when she telephoned? Maybe not, because the opinion insists on a “face-to-face exchange.” That term suggests that providing more information by telephone, like providing it through an assistant, might in effect void the previous personally-delivered, wholly adequate information.

 

The case is Shinal v. Toms, No. 31 MAP 2016 (Pa., June 20, 2017).

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