EMAIL TO A FRIEND COMMENT

 

Physician’s Assistant Info Sufficient for Informed Consent


A woman was diagnosed with a craniopharyngioma, a noncancerous brain tumor that develops at the base of the brain near the pituitary gland. She had it surgically removed. Four years later the cancer recurred.

 

The woman and her husband had an initial consultation with the doctor about removing the recurring brain tumor. They discussed the risks of surgery, including possible damage to the carotid artery and optic nerve and the risk of death. The doctor understood their discussion of the woman’s goals to mean that he should attempt to remove all of the tumor so long as the risk remained reasonable. The doctor explained that a less aggressive approach was safer in the short term but increased the risk of reducing survival rates by increasing the possibility of leaving some remnant of the tumor. After the initial consultation with the doctor, the woman also had one or more follow-up discussions by telephone with one of the doctor’s physician’s assistants.

 

The woman underwent an open craniotomy to resect the current brain cancer. During the operation, the doctor perforated the woman’s carotid artery. After the surgery the woman had impaired vision and impaired ambulation.

 

The woman and her husband sued the doctor. The complaint alleged that the doctor had failed to secure the woman’s informed consent for the surgery.

 

The Court of Common Pleas of Montour County, Civil Division, began jury selection. The couple moved to strike four prospective jurors for cause. All of them were employed by the same medical center as the doctor. None of them knew the doctor personally, had ever worked with him, or been treated by him as a patient. The trial court denied the couple’s motions to strike the prospective jurors for cause.

 

The trial court denied the couple’s motion in limine to preclude reference to the consent form the woman signed. At trial, the woman conceded that she had signed the consent form, which bore her signature, but denied that she had been informed of all of the risks, benefits, options, and alternatives to surgery.

 

The trial court instructed the jury on information provided by the doctor’s support staff to determine informed consent. The trial court instructed the jury that any qualified assistants of the doctor could convey information to the woman as part of the informed consent process.

 

The jury returned a verdict in favor of the doctor finding no liability on the issue of informed consent.

 

The Superior Court of Pennsylvania affirmed. The court held that the trial court did not err when it denied the couple’s motions to strike certain prospective jurors for cause, denied the couple’s motion in limine to preclude reference to the consent form the woman signed, and instructed the jury on information provided by the doctor’s support staff to determine informed consent.

 

The trial court did not err when it denied the couple’s motions to strike certain prospective jurors for cause. The test for determining whether a prospective juror should be disqualified is whether the juror is willing and able to eliminate the influence of any scruples and render a verdict according to the evidence. The couple failed to develop an argument and referenced no evidence to support the claim that any direct relationship existed between the doctor and any of the prospective jurors. None of the challenged prospective jurors had the type of close relationship with the doctor on which prejudice must be presumed. The couple failed to establish that any of the jurors had any direct close familial, financial, or situational relationship with the doctor such that the trial court was required to presume the likelihood of prejudice. There was no evidence to establish that an adverse verdict against the doctor would negatively financially affect any other unit of the medical center that employed the doctor and the four jurors.

 

The trial court did not err when it denied the couple’s motion in limine to preclude reference to the consent form the woman signed. The couple’s effort to conceal the woman’s signing of a standard consent form appeared disingenuous. No controlling authority supports an argument that they had a legal justification to conceal the fact that the woman had signed a standard consent form for her surgery. The trial court allowed the woman to explain her position at trial and gave a limiting instruction on the significance of the consent form.

 

The trial court did not err when it instructed the jury on information provided by the doctor’s support staff to determine informed consent. The purposes of the state’s informed consent statute are better served by the encouragement of the dissemination of as much accurate information about prospective surgery as possible. The validity of the patient’s consent is based on the scope of the information relayed rather than the identity of the individual communicating the information. The trial court’s instruction accurately informed the jury of the law.

 

The Superior Court of Pennsylvania affirmed the trial court’s jury instructions regarding the law of informed consent.

 

See: Shinal v. Toms, 2015 WL 5021355 (Pa.Super., August 25, 2015) (not designated for publication).

 

See also Medical Law Perspectives, October 2013 Report: Brain Aneurysm and Subarachnoid Hemorrhage: Failure to Diagnose, Delayed Diagnosis, Misdiagnosis 

 

 

REPRINTS & PERMISSIONS COMMENT