On June 20, 2017, the Supreme Court of Pennsylvania ruled on a case that may have significant implications for surgical informed consent.
Although the legal complexities of the case might be interesting to some, what got my attention was the question of whether a surgeon can delegate the informed consent discussion with a patient to someone else.
The case, Shinal v. Toms, involved a malpractice claim arising from a neurosurgical procedure. Megan Shinal had met with Steven Toms, MD, to discuss removal of a benign pituitary tumor (“Shinal vs. Toms: It is now harder to get informed consent,” ACS Surgery News, Sept. 10, 2017 ). Apparently several options for the surgical approach were discussed at that consultation and Ms. Shinal had reportedly agreed to have surgery.
A few weeks later, the patient had a phone conversation with Dr. Tom’s physician assistant (PA) who answered several additional questions Ms. Shinal had about the surgery. Approximately one month later, the patient met with the same PA and had a preoperative history and physical examination and the informed consent form was signed.
About 2 weeks after that, the patient had an open craniotomy with total resection of the tumor. Unfortunately, the procedure was complicated by bleeding that resulted in stroke, brain injury, and partial blindness. Ms. Shinal and her husband sued Dr. Toms for malpractice, and included in the suit was a claim that Dr. Toms failed to obtain informed consent from Ms. Shinal.
At the original trial, the jury was instructed by the judge to consider information given to Ms. Shinal both by Dr. Toms and his PA as included in the informed consent process. The jury found in favor of Dr. Toms and the patient then appealed to the Pennsylvania Superior Court which upheld the decision. The case was then appealed to the Pennsylvania Supreme Court, which specifically addressed the issue of whether the informed consent discussion must be performed by the surgeon or can be delegated to others.
Several groups, including the American Medical Association, filed briefs in the case supporting Dr. Tom’s claim that the information that is conveyed in the informed consent process is what is important rather than exactly who provides that information to the patient. For many, this case seemed to be relatively straightforward. The surgeon had discussed the operation with the patient, she had agreed, and then in several additional conversations with the surgeon’s PA, the patient’s additional questions had been answered and the patient had willingly signed the informed consent document.
However, in a surprise to many, the Pennsylvania Supreme Court decision stated that “a physician may not delegate to others his or her obligation to provide sufficient information in order to obtain a patients’ 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.” Based on this finding, the case was sent back to the trial court for a new trial.
Although legal scholars may debate the legal basis of this opinion and the ramifications for future cases, I am more interested in the ethical issues that it raises. Although, in recent decades, I have become increasingly accustomed to the idea of medical care by teams, there is something almost nostalgic about this decision. It suggests to me that at least four of the seven Pennsylvania Supreme Court justices believe that there is something so special about surgical informed consent that it must involve a direct conversation between the patient and the surgeon.
This view seems ever more foreign in an environment in which we increasingly talk about processes of care and systems errors rather than individual relationships and individual responsibility. Although the supremely hierarchical concept of the surgeon as the “captain of the ship” has largely been replaced by the team approach, it is nevertheless true that, in an elective case, the patient would not be in the operating room but for the relationship and trust that the patient has in the surgeon.
As I contemplate this court case, I see how it may add to the challenges of providing surgical care to patients and how it may further the delays to see some surgeons. However, it also reemphasizes for me that informed consent for surgery is less about the information that is transferred to the patient and much more about the relationship in which a patient places his or her trust in the surgeon. The emphasis that this court ruling places on the direct relationship between a surgeon and a patient is a refreshing reminder of the personal responsibility that surgeons have for their patients’ outcomes.
Dr. Angelos is the Linda Kohler Anderson Professor of Surgery and Surgical Ethics, chief of endocrine surgery, and associate director of the MacLean Center for Clinical Medical Ethics at the University of Chicago.