On June 20, the Pennsylvania Supreme Court ruled 4-3 in the case of Shinal v. Toms that doctors have the duty to obtain informed consent from patients and cannot delegate that duty to their staff.
The case arose in November 2007 when Megan Shinal saw Dr. Toms, neurosurgeon and Director of the Department of Neurosurgery at Geisinger Medical Center, for removal of a recurrent, non-malignant tumor from the pituitary region of Shinal’s brain. The growth of the tumor threatened Shinal’s eyesight and could impact her pituitary and hormone function. If left untreated, the tumor would become life threatening.
According to testimony, during a consultation between Dr. Toms and Shinal, they discussed the alternatives, risks, and benefits of total versus subtotal resection of the tumor. Dr. Toms opined that although the less aggressive approach was safer, it would increase the likelihood that the tumor would grow back. However, no decisions were made regarding the surgical approach.
It wasn’t until January 2008 that Shinal met with Dr. Toms’s physician assistant and signed an informed consent form. The form did not address the specific risks of subtotal versus total resection.
During the operation in late January 2008, Dr. Toms performed an open craniotomy total resection of the brain tumor, during which he perforated Shinal’s carotid artery. This mistake resulted in hemorrhage, stroke, brain injury, and partial blindness.
Writing for the majority in the decision, Justice David N. Wecht said, “The duty to obtain the patient’s informed consent belongs solely to the physician.” The justice explained that “informed consent requires direct communication between physician and patient, and contemplates a back-and-forth, face-to-face exchange, which might include questions that the patient feels the physician must answer personally before the patient feels informed and becomes willing to consent.”
Requiring doctors to obtain informed consent themselves can improve communication between patient and physician prior to surgery and may prevent some of the misunderstandings that lead to the patient assuming more risk than they realized.
At Kline & Specter, PC, we are dedicated to fighting for the justice that medical malpractice victims deserve. Our experienced team of lawyers includes five doctors who understand complex medical procedures and the mistakes physicians can make that worsen their patients’ lives.
We have recovered millions of dollars in verdicts and settlements for our clients, including the largest-ever medical malpractice verdict in Pennsylvania—$100 million for an infant who suffered brain damage because of doctors’ mistakes.
If you or a loved one has suffered severe injury because of medical malpractice, call 800-243-1100 today for a free case consultation at Kline & Specter. We represent clients in Pennsylvania, New Jersey, Delaware and across the nation.
