Thursday, March 10, 2011

Informed Consent Law in Pennsylvania

I think a lot of personal injury lawyers in Pittsburgh and Pennsylvania discourage their clients from asking a lot of questions, at least so far as the law is concerned. I disagree and feel that most personal injury lawsuits are optimized by the injured person or their family and friends working with the lawyer to define a clear picture of the case. For example I am at the very start of a medical malpractice lawsuit that looks to encompass the issue of informed consent. The client's daughter asked a very insightful question about how a claim for lack of informed consent differs, in a beneficial way, from a basic claim of medical negligence. It is always a wise idea for an attorney to familiarize him or herself with the underlying elements of the claims that will make up the matter how familiar one is with the type of case being brought. Here, the client's question gets everyone on the same page from the outset which can only help the outcome. Here is the quick response I put together in response to her question about informed consent in Pennsylvania.

The general rule in Pennsylvania regarding informed consent is that a physician must obtain a patient’s consent to perform a particular surgery. Check out this related article from FindLaw.

The patient’s consent must also be “informed.” A patient must have been given a description of the proposed medical procedure or treatment and have been informed about the risks of the procedure or treatment. The patient must also be informed of the viable alternatives a reasonable person would consider important to know in order to make an informed decision about whether or not to undergo the procedure, treatment, or operation.

The patient is not required to prove that he or she would have made a different choice had the information been disclosed. The patient must only prove that the information would have been a real factor in his or her decision to consent to the procedure or treatment not given to him or her. One defense that Pennsylvania recognizes is that consent is not required in a medical emergency.

To your question, the law in PA is such that where a physician performs a surgical procedure on a patient without the latter’s informed consent, the procedure is deemed to constitute an unauthorized “touching” or battery upon the patient. The critical result is that because battery is an intentional tort, negligence concepts, such as the skill with which the procedure was performed, are irrelevant. Montgomery v. Bazaz, 798 A.2d 742 (Pa. 2002). For the same reason it is equally irrelevant whether a reasonable patient would have consented to the procedure, had she been informed of the risk and alternatives. For these reasons, claims of informed consent are much easier to establish than professional negligence because of the objective versus subjective nature of the two. Additionally, because battery is an intentional tort, the victim of a lack of informed consent has the legal right to seek punitive damages. Just keep in mind that in Pennsylvania we typically do not plead battery as a separate count from informed consent.

Check out my other posts on Punitive Damages in Pennsylvania here and here.

Another issue you may find interesting is that a physician does not have the authority to extend surgical procedures to areas outside the initial consent unless the additional consent was expressly obtained or was implied before or during that first procedure.

Additionally, the Medical Care Availability and Reduction of Error (MCARE) Act has broadened the scope of informed consent by imposing liability “for failing to seek a patient’s informed consent if the physician knowingly misrepresents to the patient his or her professional credentials, training or experience.”40 Pa. Stat. §1303.504(d)(2). Read more about this development at FindLaw. Keep in mind, however, that this article was written medical malpractice defense attorney and thus focuses on the implications MCARE has on health care providers no the injured. Share this post :
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