2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

(a)Informed ConsentUnder MCARE, a physician is required to obtain the patient’s full, knowing, andvoluntary informed consent prior to the following procedures:1. Performing surgery, including the related administration ofanesthesia;2. Administering radiation or chemotherapy;3. Administering a blood transfusion;4. Inserting a surgical device or appliance;5. Administering an experimental medication, using anexperimental device or using an approved medication or device inan experimental manner.See 40 P.S. § 1303.504(a). Informed consent had been likewise required under the predecessorstatute, Act 135, now repealed, 40 Pa. Stat. Section 1301.811-A, since January 25, 1997 for thesame procedures.Under MCARE, as under the predecessor statute, informed consent results where thephysician gives the patient (1) a description of the procedure and (2) the risks and alternativesthat a reasonably prudent patient would need to consider to make an informed decision as to thatprocedure. The question of whether the physician obtained his patient’s informed consent is stillgoverned under the prudent patient standard. As to what constitutes the required informedconsent, it is not necessary for the physician to disclose to the patient all known risks of a givenprocedure. Rather, Pennsylvania law requires that the patient be advised of those material facts,risks, complications, and alternatives that a reasonable person in the patient’s situation wouldconsider significant in deciding whether to undergo the procedure.In defending against a claim of lack of informed consent, a physician may presentevidence of the description of the procedure at issue and those risks and alternatives that aphysician acting in accordance with the accepted medical standards of medical practice wouldprovide. See 40 P.S. § 1303.504(b). Expert testimony is also required to determine whether theprocedure at issue constituted the type of procedure which necessitates informed consent and toidentify the risks of that procedure, the alternatives to that procedure and the risks of thesealternatives. See 40 P.S. § 1303.504(c). Under MCARE, as under Act 135, a Plaintiff mustestablish the element of causation in order to set forth a viable claim for lack of informedconsent. Specifically, a physician is liable for failure to obtain informed consent of a patientonly if the patient proves that receiving such information would have been a substantial factor inhis decision whether to undergo that procedure. See 40 P.S. § 1303.504(d).MCARE, unlike Act 135, also contains a provision stating that a doctor can be held liablefor failure to obtain a patient’s informed consent if the doctor “knowingly misrepresents to thepatient his or her professional credentials, training or experience.” 40 Pa. Cons. Stat. §96