Having Surgery? Know Your Rights. It’s Your Doctor Who Must Obtain Informed Consent

January 10, 2018
Posted in Litigation
Having Surgery? Know Your Rights. It’s Your Doctor Who Must Obtain Informed Consent

Recently the Pennsylvania Supreme Court announced that a patient undergoing surgery must be counseled fully and directly by the surgeon performing the procedure. It is the duty of the surgeon to obtain informed consent.

The doctrine of informed consent protects a patient’s autonomy and body in determining what medical treatment should be allowed.  It is the patient’s right to be informed by her physician of the risks and benefits involved with medical procedures so as to allow the patient to make an informed decision about the treatment.  The physician thus has a duty to inform the patient about the risks, benefits, likelihood of success, and alternatives of a proposed surgery. As one court announced, doctors are required to give patients enough information so as to “give the patient a true understanding of the nature of the operation to be performed, the seriousness of it, the organs of the body involved, the disease or incapacity sought to be cured, and the possible results.”

Until recently, the question was raised as to whether the surgeon can delegate any of her responsibility to other medical providers, such as nurses or physician assistants, in providing the necessary information about the procedure to obtain informed consent. A simple example of this is when going to a hospital for an outpatient surgical procedure. Instead of the physician discussing the surgery and all of its implications with the patient, a nurse conveys the information and otherwise has the patient sign the informed consent form before the surgery.

The Pennsylvania Supreme Court answered this question with a resounding “no.” The Court held that “a physician cannot rely upon a subordinate to disclose the information required to obtain informed consent. Without direct dialogue and a two-way exchange between the physician and patient, the physician cannot be confident that the patient comprehends the risks, benefits, likelihood of success, and alternatives.” The Court further rejected any delegation of a physician’s duty but stating that “delegation of the informed consent process would undermine the primacy of the physician-patient relationship.  Only by satisfying the duty of disclosure may the physician ensure that consent is truly informed.”

So should you or a loved one have to undergo surgery, make sure that you speak directly with the physician involved with the procedure in order that you and your doctor fully understand what is involved in proceeding with the medical procedure.

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