2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

where payment is made by Medicaid would lead to an inequity because patients paying formedical services privately would be treated differently than patients paying with Medicaid.Ultimately, the court concluded the Medicaid regulations in question “do not impose a legalstandard relevant to an action for lack of informed consent.”The Isaac court’s narrow holding does not completely foreclose the possibility that someMedicaid regulations may be relevant to the legal standard for informed consent claims. Also,the court noted their decision did not address whether the specific Medicaid regulations at issuewere relevant in support of a cause of action for negligence regarding the quality of informationprovided by a doctor when obtaining informed consent.The Supreme Court of Pennsylvania recently addressed whether the substantial factorelement of an informed consent claim may be established solely through the testimony of thepatient’s spouse. 2 See Fitzpatrick v. Natter, 599 Pa. 465, 961 A.2d 1229 (2008). In Fitzpatrick,The court held that the testimony of a patient’s spouse may be sufficient to prove the substantialfactor element. 3 Id.The evidence at trial revealed that Carol Fitzpatrick, appellant, was diagnosed withmultiple sclerosis (“MS”) when she was nineteen years old, in or around 1972. In 1998 Carolbecame a patient of Dr. Natter, a neurologist. By 1998, Carol was having difficulty walking, hadincontinence, intermittent pain, and other symptoms. Rather than continue taking oral doses ofan anti-spasticity drug, Dr. Natter suggested that Carol undergo surgery to have a subcutaneouspump implanted that would administer the drug uniformly and continuously. Dr. Natterprovided Carol with information on the pump, which included the risks and benefits associatedwith it, and referred Carol to appellee, Dr. Munz. Carol opted for surgery.Subsequent to the surgery Carol’s condition deteriorated drastically until she becameparaplegic, incontinent, and wholly dependent upon her husband, Thomas. In 2002, Carol andThomas filed a professional liability action alleging breach of standard of care, battery or lack ofinformed consent, and loss of consortium.A jury trial commenced in 2004 limited to the claims of lack of informed consent andloss of consortium. At trial, Thomas testified that he and his wife, Carol, made all medicaldecisions jointly and that, had all risks associated with Carol’s surgery been fully disclosed,Carol would have opted against surgery. According to the findings of the Court, Plaintiffs madethe strategic decision for Carol not to testify, although she was present in the courtroom for mostproceedings. In March 2004, the jury returned a verdict for Plaintiffs finding, in part, thatappellee failed to obtain Carol’s informed consent before performing the pump implantationsurgery and that information he failed to provide would have been a substantial factor in Carol’sdecision to undergo the surgery.2 In this case, the patient was present during most courtroom proceedings and was able to testify on her own behalfbut the decision was made for her to not testify.3 It should be noted that the court, in reaching its decision, interpreted informed consent statute 40 Pa. Cons. Stat.§1301.811-A, which has been repealed in favor of 40 Pa. Cons. Stat. § 1303.504, although the court did note that thestatutes are materially similar for the purposes of its decision.54