2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

Plaintiff’s favor and against the estate without making any distinction between the negligenceand informed consent claims.In Pollock v. Feinstein, 917 A.2d 875 (Pa. Super. Ct. 2007), the court examined whethera certificate of merit needs to be filed for an informed consent claim that alleges an incompletedisclosure of the risks of surgery. The court explained the claim focused on whether Defendant’sconduct conformed to a professional standard, “namely ‘[t]o provide patients with materialinformation necessary to determine whether to proceed with the surgical or operative procedureor to remain in the present condition.’” Id. (quoting Valles v. Albert Einstein Med. Ctr., 805A.2d 1232 (Pa. 2002). The court stated at a minimum, Plaintiff needed to produce experttestimony identifying the procedure’s risks, alternative procedures, and the risks of alternativeprocedures. Therefore, a certificate of merit must be filed for an informed consent claim whichalleges an incomplete disclosure of the risks of surgery. The court did not address whether acertificate of merit is needed in cases involving the performance of an unauthorized procedure.See also, Leaphart v. Prison Health Servs., Civil No. 3:10-CV-1019, 2010 U.S. Dist. LEXIS135435 (M.D. Pa. Nov. 22, 2010) (citing, inter alia, Pollock, and noting, “Moreover,Pennsylvania caselaw construing this certificate of merit requirement has expressly extended therequirement to malpractice claims like those brought here that are grounded in an alleged failureto obtain informed consent”) (Magistrate Judge’s recommendation), adopted by, 2010 U.S. Dist.LEXIS 135448 (M.D. Pa. Dec. 21, 2010).In Isaac v. Jameson Memorial Hospital, 932 A.2d 924 (Pa. Super. Ct. 2007), the courtexamined whether a Medicaid regulation governing the informed consent procedures necessaryto obtain federal reimbursement have any relevance to a cause of action for informed consent.The court only examined a single set of Medicaid regulations governing reimbursement forsterilization procedures and did not make a blanket conclusion regarding the relevance of allMedicaid regulations to an informed consent claim.First, the court examined the applicability of Medicare regulations to an informed consentclaim against the hospital. The court examined Friter v. Iolab Corp., 607 A.2d 1111 (Pa. Super.Ct. 1999), where the court created an exception to the general rule that health care institutions arenot liable for a lack of informed consent. In Friter, the court concluded the hospital “as aparticipant in a clinical investigation for the FDA” the hospital assumed a duty to ensure allpatients participating in the study give informed consent. In contrast, the Isaac court found theseparticular Medicaid regulations do not place an independent duty on health care institutions toobtain informed consent. The court explained Medicaid regulations only set forth thepreconditions necessary for federal reimbursement. Thus, the court concluded the Medicaidregulations do not place an independent duty on a hospital to obtain informed consent.Next, the Isaac court examined the relevance of the Medicaid regulation on informedconsent claims against a doctor. The court stressed the Medicaid regulation at issue did notrelate to the quality of information provided to a patient and only related to the timing of apatient’s consent for a sterilization procedure. The court noted that Plaintiffs were seeking toimpose new duties upon a doctor beyond providing material information regarding a medicalprocedure. The court recognized that the regulations do indirectly benefit patients by assuringthat patients have adequate time to fully consider a sterilization procedure, which reduces therisk of coercion. Additionally, the court found that adopting Medicaid regulations for cases53