By Dan Logsdon, MD

Have you heard about the recent Pennsylvania Supreme Court decision that will have far reaching implications into how medical consenting is done?  If you’re not well connected in the medical law community, probably not.  The case of Shinal vs. Toms has not been well publicized although its ruling will effect every physician, physician assistant, and nurse practitioner in the US.


The Long and Short of It:

In 2007, Megan Shinal was found to have a recurrent non-maligant tumor in the pituitary region of her brain.  She was seen by Dr. Toms, neurosurgeon at Geisinger Medical Center in Danville Pennsylvania in November 2007 to discuss surgical resection.   At that time he reviewed the alternatives, risks, and benefits of total versus subtotal resection and advised her that complete resection would give her the highest chance for long term survival.


She presented in January 2008 for a second clinic visit and Dr. Tom’s physician assistant (PA) completed an informed consent but “did not address specific risks of total versus subtotal resection”.   Two weeks later she underwent a craniotomy and total resection of the tumor.  During the operation her carotid artery was perforated resulting in stroke and partial blindness.


In December 2009, Mrs. Shinal filed a medcial malpractice lawsuit for a lack of informed consent, stating Dr. Toms failed to explain the risks of surgery or offer her a lower risk surgical alternative of subtotal resection.   The Common Pleas Court ruled in favor of Dr. Toms siting no wrong doing however it was appealed to the Supreme Court.


On June 20, 2017 the Pennsylvania Supreme Court ruled 4:3 in favor of Mrs. Shinal finding fault with Dr. Toms siting the MCARE Act that states “a physician owes a duty to a patient to obtain informed consent”.  An excerpt from the Supreme Court’s decision read:


“…[W]e hold that a physician may not delegate to others his or her obligation to provide sufficient information in order to obtain a patient’s informed consent. Informed consent requires direct communication between physician and patient, and contemplates a back-and-forth, face-to-face exchange, which might include questions that the patient feels the physician must answer personally before the patient feels informed and becomes willing to consent. The duty to obtain the patient’s informed consent belongs solely to the physician.”  Shinal v. Toms, No. 31 MAP 2016, 2017 Pa. LEXIS 1385, at *52 (June 20, 2017).


In response to the ruling from the three justices who dissented said this “decision will have a far-reaching, negative impact on the manner in which physicians serve their patients. For fear of legal liability, physicians now must be involved with every aspect of informing their patients’ consent, thus delaying seriously ill patients access to physicians and the critical services that they provide.”


Now what

Informed consenting is a critical part of daily medical practice and it fosters open communication between the physician and patient.  Physician assistants act as direct extensions for their physician helping him/her see and care for more patients.  PAs undergo extensive medical training and are then mentored in apprenticeship model under their respective physicians as they continue to advance their medical practice.  In the surgical setting, PAs are running clinics, caring for inpatients, managing outpatients and consenting is a part of their daily practice.


This new ruling will become a precedent ruling in all informed consent cases and although it started in Pennsylvania, the fall out will affect every physician in every state.  Physicians will now be required to complete the consenting documentation, which adds more to their plate that doesn’t involve delivering expert medical care.


Integrated consenting

Although this ruling may require increase the burden on physicians, with an efficient, intelligent, integrated consenting process this burden can be alleviated.   AgileConsent is a fully integrated consenting solution that is built into your electronic medical record (EMR) providing fast, paperless consenting.   Their solution learns your consenting practices with the use of artificial intelligence and also creates consents based on your surgery schedule.  It also provides intelligent consenting for anesthesia and inpatient services that provides an effortless workflow.


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