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Every competent adult has the right to decide what happens to his or her own body. Pennsylvania patients can refuse treatment even when everyone around them thinks they are making the wrong choice. That right means little unless the patient understands what is being proposed.
What Informed Consent Means
Before certain procedures, a doctor must explain the information a reasonable patient would want to know to make the decision, including:
- The nature of the procedure and what it is meant to accomplish.
- The risks and possible complications.
- The alternatives, including the option of doing nothing.
Under Pennsylvania’s MCARE Act, this duty applies to surgery (including the related anesthesia), radiation and chemotherapy, blood transfusions, inserting a surgical device or appliance, and experimental medications or devices, except in an emergency. The Pennsylvania Supreme Court has held that the duty belongs to the physician personally and cannot be handed off to a nurse or assistant (Shinal v. Toms, 2017).
Common Informed Consent Cases
- The patient was not told about a significant risk that then happened
- Reasonable alternatives were never discussed
- The doctor performed more surgery, or a different surgery, than the patient agreed to
- The doctor knowingly misrepresented his or her credentials, training or experience
A Case Even When the Surgery Went “Right”
A lack of informed consent claim can exist even if the surgery was performed correctly. The question is whether the patient would have made a different decision with the full picture. To recover, the patient must show that receiving the missing information would have been a substantial factor in deciding whether to go forward. An operation performed with no consent at all is treated as a battery.
We believe patients have the legal and moral right to make their own decisions. Doctors are not allowed to substitute their judgment for the patient’s.
For Lawyers: Proposed Jury Instructions We Have Used
In every lack of informed consent trial, the parties submit proposed jury instructions, and the judge decides what the jury is told. The following are proposed points for charge we used in a case that resulted in a successful jury verdict. Verify current law before relying on them.
- A patient must consent to a surgical procedure before the operation is performed. An operation without the patient’s consent constitutes a battery. Montgomery v. Bazaz-Sehgal, 568 Pa. 574, 798 A.2d 742 (2002); Foflygen v. R. Zemel, M.D. (P.C.), 420 Pa. Super. 18, 615 A.2d 1345 (1992).
- “Consent” means a voluntary agreement by a person in possession and exercise of sufficient mentality to make an intelligent choice to do something proposed by another. Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966).
- A doctor who operates on a patient without that patient’s consent is liable for the damages which occur, notwithstanding the care exercised. Gouse v. Cassel, 532 Pa. 197, 615 A.2d 331 (1992).
- The law imposes on physicians a duty to obtain the informed consent of a patient before performing surgery. 40 P.S. § 1303.504; Montgomery, supra.
- The information provided must be sufficient to give the patient a true understanding of the nature of the operation, its seriousness, the organs of the body involved, the disease or incapacity sought to be cured, and the possible results. Montgomery, supra.
- The physician must advise the patient of those material facts, risks, complications and alternatives that a reasonable person in the patient’s situation would consider significant in deciding whether to have the operation. Montgomery, supra.
- Lack of informed consent is the legal equivalent of no consent; a physician who operates without informed consent is liable for the damages which occur, notwithstanding the care exercised. Gouse, supra.
Pennsylvania Rules You Should Know
- Two-year deadline. A malpractice suit generally must be filed within two years of when the patient knew, or reasonably should have known, of the injury and its cause. Special rules can apply to children and to deaths. Do not wait to get advice.
- Certificate of Merit. Your lawyer must certify that a qualified medical professional reviewed the case and found the care likely fell below accepted standards and caused the harm. It is filed with the complaint or within 60 days after.
- Expert testimony is required. The expert generally must practice in the same or a substantially similar specialty as the provider being sued.
- No cap on compensatory damages. Pennsylvania does not limit what a jury can award for medical expenses, lost earnings, and pain and suffering.
Related Cases We Handle
Talk to a Malpractice Lawyer
Every case starts with a conversation with a lawyer, not an intake clerk. If the facts and injuries support a closer look, we have the medical records reviewed by an appropriate physician before you commit to anything. Our medical malpractice cases are handled by Noah Fardo and Bill Rogel.
Call 412-802-6666 or email Managing Partner Noah Fardo at npf@pghfirm.com. Prefer to text? Use 412-855-5511. More answers: Medical Malpractice FAQ.
There is no fee unless we obtain a monetary recovery. We advance the case costs and are reimbursed from the client’s share only if we are successful. General information only, not legal advice. Past results do not guarantee a similar outcome.
