2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

procedure. 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.To succeed on a claim for lack of informed consent, a patient must prove:(1) the physician failed to disclose a relevant risk oralternative before obtaining the patient’s consent for acovered procedure, and(2) the undisclosed information would have been asubstantial factor in the patient’s decision whether toundergo the procedure.See Fitzpatrick v. Natter, 961 A.2d 1229 (Pa. 2008) (citing Hohns v. Gain, 806 A.2d 16, 19 (Pa.Super. Ct. 2002); Gouse v. Cassel, 615 A.2d 331, 333 (Pa. 1992)).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. Expert testimony is also required to determine whether the procedure at issueconstituted the type of procedure which necessitates informed consent and to identify the risks ofthat procedure, the alternatives to that procedure and the risks of these alternatives. UnderMCARE, as under Act 135, a plaintiff must establish the element of causation in order to setforth a viable claim for lack of informed consent. Specifically, a physician is liable for failure toobtain informed consent of a patient only if the patient proves that receiving such informationwould have been a substantial factor in his decision whether to undergo that procedure.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. §504(d)(2). This provision, with respect to procedures performed after MCARE’s effective date,apparently overrules the Supreme Court case, Duttry v. Patterson, 771 A.2d 1255, 1259 (Pa.2001) (“Based on the foregoing, we hold that information personal to the physician, whethersolicited by the patient or not, is irrelevant to the doctrine of informed consent. Our holdingshould not, however, be read to stand for the proposition that a physician who misleads a patientis immune from suit.”).4. Recent DecisionsMcSorley v. Deger, 905 A.2d 524 (Pa. Super. Ct. 2006), appeal denied, 919 A.2d 958(Pa. 2007), involves surgery that occurred in 1997, before the enactment of MCARE. Thesurgery at issue was planned as a diagnostic laparoscopy to evaluate Plaintiff’s cystic rightovary. During the procedure, one physician Defendant noted that her terminal ileus wasmarkedly abnormal and so called for an intraoperative consult by another Defendant physician.The consulting physician found the Plaintiff’s small bowel was severely distorted, believed theabnormality could be caused by (among other things) cancer, and made the decision to remove it.It was subsequently determined that the distortion was caused by scar tissue. After surgery,51