Health Law Legislation: Pennsylvania Expands "Informed Consent"

MCARE — the “Medical Care Availability and Reduction of Error” Act — was Pennsylvania’s most recent response to the medical professional liability crisis. MCARE significantly expands the doctrine of “informed consent,” requiring physicians to become even more careful about what they tell patients and how they document that communication.

Prior to MCARE, doctors were required to obtain the informed consent of a patient before performing certain surgical procedures. This obligation was based upon the view that physicians were required to provide patients with material information necessary to determine whether to proceed with the surgical or operative procedure or to remain in the present condition. Doctors discharged this duty by advising patients of those material facts, risks, complications and alternatives to surgery that a reasonable person in the patient’s situation would consider significant in deciding whether to have the operation. Even before MCARE, the informed consent doctrine had particularly harmful potential because it was grounded in the common law tort of “battery” (an unwanted touching), thus, patients could recover financial damages for surgery performed in the absence of informed consent even if the procedure was successful and without complication.

Before MCARE, a physician had no duty to disclose information regarding her own expertise with respect to a procedure. Indeed, the Pennsylvania Supreme Court has recently ruled that a physician was not liable under an informed consent theory for misrepresenting information regarding her experience, even when that misrepresentation occurred in response to a specific inquiry by a patient prior to giving her informed consent. In Duttry v. Patterson, 565 Pa. 130, 771 A.2d 1255 (2001), an esophageal cancer patient facing surgery allegedly asked the physician about his experience performing the type of surgery that he recommended for her. The patient believed that the doctor told her he had done that particular procedure on a monthly basis. Later, however, and according to the patient, she learned that he had only performed the surgery about nine times in the preceding five years. Following surgical complications, the patient sued, alleging both negligence in performing the surgery and a lack of informed consent.

The Pennsylvania Supreme Court held that the doctrine of informed consent was limited, and that a physician was only required to disclose information relating to the actual procedure itself. The Court explained that the doctrine was not intended to be expanded so far as to include matters that were not specifically germane to surgical or operative treatment, such as facts personal to the treating physician. Any such expansion, according to the Court, would “extend the doctrine into realms well beyond its original boundaries.” Id. at 135, 771 A.2d at 1258. The Court concluded that “information personal to the physician, whether solicited by the patient or not, is irrelevant to the doctrine of informed consent.” Id. Thus, the plaintiff was barred from recovery on an informed consent theory.

Now, however, under the new MCARE Act, a physician may be liable on an informed consent theory for knowingly misrepresenting his or her professional credentials, training or experience. Indeed, the MCARE provision regarding informed consent, 40 Pa. Stat. §1303.504(d)(2), legislatively overrules the Duttry decision. MCARE imposes a new liability “for failing to seek a patient’s informed consent if the physician knowingly misrepresents to the patient his or her professional credentials, training or experience.” 40 Pa. Stat. §1303.504(d)(2).

This expansion of the informed consent doctrine may spawn more litigation. While the Act does not, on its face, require physicians to volunteer their background and experience as a part of the informed consent discussion, some judges might take the law a step further by ruling that a doctor who does not volunteer information about his experience (or lack thereof) “knowingly misrepresents” his qualifications, and thus fails to obtain the patient’s informed consent. Likewise, doctors wonder what information a “reasonable person” would want to know about his or her experience before a patient would give informed consent.

MCARE offers few answers. Although ostensibly intended to provide a basis for a lawsuit to patients whose surgeons knowingly mislead them about their surgical experience, practitioners worry that MCARE might ensnare surgeons whose accurate and honest use of a medical vocabulary becomes misconstrued by the patient. Attending physicians who rely on residents to obtain the patient’s informed consent may find that the process is now more involved. Residents may be ill equipped to respond to a patient’s inquiry about the attending physician’s qualifications.

At a minimum, physicians must provide accurate information about their experience, training, and credentials, especially when a patient asks a physician about his or her background. Not only must doctors not exaggerate their experience to inquiring patients, but they must also avoid potential miscommunications. Given that patients may not understand nuances of nomenclature and vocabulary, surgeons are advised to carefully explain to their inquiring patients the difference between their prior performance of the procedure versus their prior assistance of other doctors who actually performed the procedure. As with any patient contact, the nature and content of the informed consent discussion must be well documented in the medical records. In terms of documentation, physicians who author contemporaneous progress notes may be better positioned to defend themselves than those who merely witness the signing of a pre-printed form.

Those who followed the late-2001 and early-2002 headlines about malpractice reform in Pennsylvania had high hopes, but if MCARE’s treatment of informed consent is any guide, the Act will only increase the costs of litigation.