2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

the required burden because his opinion was inconsistent with recent biological andepidemiological evidence and he relied only on experiments with rodents).D. Informed Consent – Medical MalpracticeThe Pennsylvania Supreme Court has in the past several years revisited and upheld theintentional tort battery theory underlying the doctrine of informed consent. See Montgomery v.Bazaz-Sehgal, 798 A.2d 742 (Pa. 2002); Morgan v. MacPhail, 704 A.2d 617 (Pa. 1997); see alsoGouse v. Cassel, 615 A.2d 331 (Pa. 1992); Moure v. Raeuchle, 604 A.2d 1003 (Pa. 1992). Todate, the Supreme Court has declined to recognize a cause of action for negligent failure toobtain informed consent.However, the distinction is not always material. For instance, in Fitzpatrick v. Natter,961 A.2d 1229, n.13 (Pa. 2008), the Court wrote, “An informed consent action, of course, soundsin battery rather than in negligence. . . . Nevertheless, the distinction between a battery and anegligence tort is irrelevant to the evidentiary question of what sort of evidence is sufficient toestablish an element of the claim; logically, the principles governing the admissibility ofcircumstantial evidence and the weight it may be accorded apply regardless of the nature of thecase, and the parties do not argue otherwise.”1. General RuleUnder current Pennsylvania law, a physician is required to obtain consent from hispatient concerning any non-emergency procedure enumerated in the MCARE Act, 40 Pa. Cons.Stat. § 1303.504. In order to constitute a valid consent, the patient must be informed of thematerial risks of the procedure prior to surgery. Absent informed consent, the physician may beheld liable to a plaintiff, under a theory of battery, for injuries arising from the undisclosed risk.See Gray v. Grunnagle, 223 A.2d 663 (Pa. 1966); see also Cooper v. Roberts, 286 A.2d 647 (Pa.Super. Ct. 1971).2. Expert Testimony RequiredPennsylvania courts place the burden upon the plaintiff to establish through experttestimony the existence of all risks of the chosen treatment, alternative methods of treatment andrisks of alternatives as well as causation. See, e.g., Hartenstine v. Daneshdoost, NO: 2005-C-2059V, 2008 Pa. Dist. & Cnty. Dec. LEXIS 60 (Lehigh Cty. Ct. Com. Pl. January 16, 2008). InFesta v. Greenberg, 511 A.2d 1371 (Pa. Super. Ct. 1986), appeal denied, 527 A.2d 541 (Pa.1987), the court specifically held that expert testimony is required to establish the followingthree elements:a. The existence of risks in the specific medical procedure;b. The existence of alternative methods of treatment; andc. The attending risks of such alternatives.49