2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

Following Cooper v. Roberts, 286 A.2d 647 (Pa. Super. Ct. 1971), the Festa court statedthat once these three elements are established by expert testimony, it remains for the trier of factto determine the materiality of those risks.Expert testimony in the context of an informed consent claim is not required, however,with respect to alleged emotional injuries that are obviously connected to surgery to which apatient did not consent. Montgomery v. Bazaz-Sehgal, 798 A.2d 742 (Pa. 2002).For another example of expert testimony not required in proving an informed consentclaim see Hartenstine v. Daneshoost, 4 Pa. D. & C. 5th 282 (Lehigh Cty. Ct. Com. Pl. 2008). InHartenstine, plaintiff alleged that consent to surgery was obtained following the physician’smisrepresentation of the surgical procedure to be performed. See id. The Court of CommonPleas, Lehigh County, held that in this situation, expert testimony is not required to support aclaim based on medical battery. Id. The court explained that a consent obtained through aknowing misrepresentation is ineffective and, therefore, expert testimony is not requiredregarding alternate treatments and risks of those treatments because the patient’s claim is notgrounded on the physician’s failure to disclose such information but, rather, on the physician’saffirmative misrepresentation. See Id.3. The MCARE ActUnder the MCARE Act, Pennsylvania law now (since March 20, 2002) requires thephysician to obtain the patient’s full, knowing, and voluntary informed consent prior to thefollowing procedures:a. Performing surgery, including the related administration ofanesthesia;b. Administering radiation or chemotherapy;c. Administering a blood transfusion;d. Inserting a surgical device or appliance;e. Administering an experimental medication, using an experimentaldevice or using an approved medication or device in an experimentalmanner.See 40 Pa. Cons. Stat. § 1303.504(a). Informed consent had been likewise required for the sameprocedures under the predecessor statute, Act 135, now repealed, 40 Pa. Cons. Stat. Section1301.811-A, since January 25, 1997.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 given50