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Informed Consent for Surgery Debated in PA Courts

Posted on September 15, 2017

When Megan Shinal gave her consent for surgery to a physician assistant, she was ready for the surgeon to do a total resection of her brain tumor. But after significant surgical complications that resulted in permanent disability, she questioned whether she might have made a different decision had she given informed consent to the surgeon. That was the basis for a case that went all the way to the Pennsylvania Supreme Court, as reported in a recent news article.

“This type of surgery—the removal of a craniopharyngioma, a very serious and recurrent tumor located deep in the base of the brain—is one of the most complex surgeries in all of neurosurgery,” noted a news article in AMA Wire. “For this reason, there were numerous important surgical decisions to be made, some by the surgeon and some collaboratively with the patient.”

Shinal discussed the options with her surgeon, Steven A. Toms, M.D., director of the neurosurgery department at Geisinger Medical Center. She later met with the practice’s physician assistant, and signed consent for the full removal of the tumor.

“While performing a total resection of the brain tumor, [Dr.] Toms perforated Shinal’s carotid artery, resulting in hemorrhage, stroke, brain injury, and partial blindness,” according to the article in AMA Wire. “Shinal testified at trial that had she known of the alternative approach to surgery, she would have chosen partial removal of the tumor as the safer, less aggressive option.”

The court sided with Dr. Toms and accepted patient consent obtained by his qualified staff. Shinal appealed the case, and again, the court sided with the doctor. The Pennsylvania Supreme Court, however, reversed the decision, noting that the Medical Care Availability and Reduction of Error (MCARE) Act required a physician to deliver the information. “Informed consent requires direct communication between physician and patient, and contemplates a back-and-forth, face-to-face exchange,” the majority opinion said. The dissent noted that there’s nothing preventing a physician using qualified staff to obtain consent but that the doctor would be liable if there’s negligence in doing so.

How this ruling will impact the day-to-day tasks of physicians on informed consent and other matters is not yet fully determined. However, if you think you have been injured as a result of medical malpractice or a surgery error in Philadelphia, please contact us. We have a great deal of experience in recovering multimillion dollar verdicts and settlements.