Before a doctor performs any type of medical procedure, they must obtain the patient’s “informed consent” to do so.  In general, this means that the patient must be provided with all potential risks, side effects and alternatives to the procedure, so that they can make an educated decision about whether or not to go through with the procedure.  Pennsylvania courts have long recognized this requirement and have even held that a physician’s failure to obtain a patient’s informed consent before performing a surgery or procedure may amount not only to negligence, but to a battery. 

Recently, the Pennsylvania Supreme Court agreed to consider whether the fact that a physician obtained informed consent may be used by that physician as a defense to a medical malpractice claim.  In Brady v. Urbas, the plaintiff underwent surgery on a toe which, she alleged, failed to correct her problem and required her to undergo multiple subsequent surgeries.  As part of his defense, the doctor in essence sought to argue that the plaintiff was aware of the risks associated with the surgery, and the fact that the surgery did not provide the desired outcome did not mean the doctor was necessarily negligent.  The trial court allowed this evidence.  The court permitted the defendant to reference the plaintiff’s knowledge of the risks of the procedure at trial, and also allowed informed consent forms signed by the plaintiff to be examined by the jury.  The jury returned a verdict in favor of the defendant doctor.  On appeal, the Superior Court overturned that verdict, concluding that informed consent evidence is irrelevant in a medical malpractice case.  The Supreme Court has now agreed to review the case to determine whether evidence of a patient’s informed consent should be permitted in medical malpractice cases moving forward.

Regardless of how the court comes down on this question, the fact remains that a doctor is required to obtain a patient’s informed consent before performing any medical or surgical procedure.  When a doctor fails to do so, and the patient suffers an adverse outcome as a result, the patient may be able to bring claims against that doctor.  It is important to know that, simply because you may have signed an informed consent form prior to undergoing a procedure, does not automatically mean you provided informed consent under the law.  If you believe that you or a loved one has suffered a bad outcome from a medical procedure for which they did not provide informed consent, contact the experienced medical malpractice attorneys at Stark & Stark today for a free consultation.