Today, The Legal Intelligencer published, “Pa. Justices Urged to Bar Informed Consent in Med Mal Cases.” When a patient agrees to undergo a medical procedure, it is a standard practice for the doctor or medical professional to discuss any risks with the patient and/or have the patient sign a consent form. Informed consent describes this practice – permission granted in the knowledge of the possible consequences, typically that which is given by a patient to a doctor for treatment with full knowledge of the possible risks and benefits. At times, informed consent is used by the defense in medical malpractice cases to insert the notion that the victim had knowledge of any risks prior to the incident. However, PA justices are now being asked to bar informed consent in medical malpractice cases that are based on negligence. This decision will permanently alter how medical malpractice cases are handled in Pennsylvania.
The Marrone Law Firm, LLC offers commentary on the significance of this issue, what it means, and how it applies to victims of medical malpractice in Pennsylvania:
This issue is vitally important to victims of medical malpractice in Pennsylvania. The state Supreme Court is weighing a challenge to the Superior Court’s decision to bar evidence of the patient’s informed consent in a case where the patient is only alleging negligence. The distinction is critical. Negligence is the doctor’s failure to perform consistent with the standard of care. Lack of informed consent is actually a claim for battery, alleging that the plaintiff had insufficient basis on which to decide whether or not to have the procedure in the first place. Doctors who have performed negligently often defend themselves by stating that the plaintiff consented to the procedure. But the law is well settled that a patient never, under any circumstances, consents to a doctor’s negligence. Negligent doctors should not be allowed to mislead a jury into thinking that, because a potential negative outcome is discussed prior to surgery, or printed on a form signed by the patient, there is automatically zero negligence when that outcome occurs. The question is not what was printed on the form or discussed prior to the procedure, but whether the doctor’s performance of the procedure fell outside of the standard of care. The patient’s consent has nothing to do with that issue and should not be admitted into evidence when a case is only based on negligence.