The Pennsylvania Supreme Court ruled 4-3 that only a physician, not a member of his staff, must obtain “informed consent” from a patient before performing medical procedures.

Brain Surgery

In Shinal v. Toms, Dr. Steven Toms, the chief of neurosurgery at Geisinger in Danville performed surgery to remove a tumor in Megan Shinal’s brain. During the operation, Dr. Toms perforated Mrs. Shinal’s carotid artery, causing hemorrhage, stroke, brain injury, and partial blindness. 

Montour County Malpractice Lawsuit

Megan sued for malpractice in Montour County claiming that had she known the alternative approaches to surgery, i.e., total versus subtotal resection, she would have chosen subtotal resection as the safer, less aggressive alternative. Dr. Tom’s procedure was more aggressive than Megan said she wanted and caused permanent injury. There was conflicting trial testimony about how aggressive Megan wanted the surgeon to be in attempting to remove as much of the tumor as possible. Although Megan spoke to the doctor before surgery, she had additional questions that were answered by the doctor’s assistant.

Trial Verdict for Doctor

The jury returned a verdict for the doctor but the Supreme Court ordered a new trial because it was Dr. Toms’ assistant who obtained the informed consent from Megan and not the doctor himself.

The Supreme Court’s Divided Opinion David N. Wecht, writing for the majority, said doctors cannot delegate their obligation to obtain informed consent:

“…[W]e hold that a physician may not delegate to others his or her obligation to provide sufficient information in order to obtain a patient’s informed consent. 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. The duty to obtain the patient’s informed consent belongs solely to the physician.”  Shinal v. Toms, No. 31 MAP 2016, 2017 Pa. LEXIS 1385, at *52 (June 20, 2017).

The Dissent

Justice Todd filed a concurring and dissenting opinion.

Justice Baer said he “respectfully but fervently” dissented, declaring that the law does not support the proposition that a physician’s qualified staff member was unable to obtain informed consent.

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  1. July 31, 2017

    How will this effect the already practicing Certified Registered Nurse Anesthetists (CRNA’s) who provide anesthesia without a “physician anesthesiologist”? Surgeons or other non anesthesia trained physicians will NOT consent for the anesthesia provided since they are not responsible, nor should they!

    • July 31, 2017

      The problem in Shinal v. Toms was that the assistant was giving advice outside of her expertise. Basically, advice only the doctor was competent to give and which he was not permitted to delegate. I don’t think the court would have had a problem with a CRNA giving advice that was within her/his competence and training.

  2. August 3, 2017

    Was there an extensive review of APRN practices? APRNs practice as sole care providers. Were considerations given to how this ruling limits access to care for patients by enforcing such a decision and increases costs to healthcare? I understand that it has been noted that an assistant spoke outside of their credentials and that may be why this ruling has been created, But why have APRNs been limited by this?

    • August 3, 2017

      The court made this comment which explains its reasoning: “we hold that a physician cannot rely upon a subordinate to disclose the information required to obtain informed consent. Without direct dialogue and a two-way exchange between the physician and patient, the physician cannot be confident that the patient comprehends the risks, benefits, likelihood of success, and alternatives.”
      “…Were the law to permit physicians to delegate the provision of critical information to staff, it would undermine patient autonomy and bodily integrity by depriving the patient of the opportunity to engage in a dialogue with his or her chosen health care provider. A regime that would countenance delegation of the informed consent process would undermine the primacy of the physician-patient relationship. Only by personally satisfying the duty of disclosure may the physician ensure that consent truly is informed.” I didn’t see any references to CRNA’s but it could be argued that this same reasoning applies to any professional healthcare relationship.
      The opinion can be downloaded free at this link:

      • August 3, 2017

        Geiger, do you mean than that CRNAs and APRNs would continue consenting patients for the care they deliver and this ruling doesn’t change APRNs normal work flow?

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