Making Informed Decisions About Informed Consent

Patients have come to expect that they will be actively involved in making decisions about their health care. Informed consent aids patient involvement and provides a process whereby a health care provider discusses a treatment or procedure with a patient, including the nature of the proposed procedure, reasonable alternatives, and the relevant risks and benefits of that procedure. The provider uses this process to assess the patient’s understanding of the treatment plan, while the patient uses this process to become actively involved in the treatment process.  The process, in addition, may help protect providers from claims that patients did not understand the pertinent risks in the event of adverse outcomes resulting from the procedure.

Recent court decisions in Pennsylvania and Missouri are worth consideration for providers, and serve as a reminder that providers may wish to review their informed consent practices if there have been recent state law changes regarding informed consent.

A recent Pennsylvania Supreme Court decision determined that physicians cannot delegate the informed consent process to another provider in their practice without still retaining liability. The court found that the physician providing the treatment or procedure has the sole responsibility for informing his or her patients under Pennsylvania’s Medical Care Availability and Reduction of Error (MCARE) Act. Shinal v. Toms, 2017 WL 2655387 (Pa. June 20, 2017).

Pennsylvania is not the only state with a recent high court case addressing informed consent. This year, the Missouri Supreme Court refused to uphold a lower court decision that an informed consent was relevant to case of malpractice and should be admitted into evidence. Even though the physician’s informed consent documentation included reference to a specific procedure, the court found that informed consent for the procedure does not impact whether or not the physician engaged in malpractice by providing that procedure. Wilson v. P.B. Patel, M.D., P.C., 517 S.W.3d 520, 524 (Mo. 2017). The effect of this case is to limit the evidence that can be presented to a jury in Missouri in cases regarding medical malpractice.

Informed consent is a useful process for both providers and patients, and as some state laws regarding informed consent are still developing, as shown in Missouri and Pennsylvania, providers may wish to keep their informed consent policies up to date.