informed consent doctrine in Pennsylvania

2024The Board recognized Claimant’s objection to the COVID-19 vaccination and testing because he did not want to “put something in [his] body that [he did not] know what it is” and “did not know what could affect [him] down the road.” (Board’s Decision and Order, at 3.) “The goal of the informed consent doctrine ‘is to provide the patient with material information necessary to determine whether to proceed with the given procedure or to remain in the present condition.’” Sinclair by Sinclair v. Block, PAM - 3 M.D., 633 A.2d 1137, 1141 (Pa. 1993).

2002The informed consent doctrine requires physicians 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.” Sinclair by Sinclair v. Block, 534 Pa. 563 , 633 A.2d 1137, 1140 (1993).

2025On June 26, 2023, following resolution of preliminary objections and discovery, Appellees filed a motion for summary judgment pursuant to ____________________________________________ 2 Under the informed-consent doctrine, a physician must disclose those risks “that a reasonable person in the patient’s situation would consider significant in deciding whether to have the operation.” Gouse v. Cassel, 615 A.2d 331, 334 (Pa. 1992).

2024On June 26, 2023, following resolution of preliminary objections and discovery, Appellees filed a motion for summary judgment pursuant to ____________________________________________ 2 Under the informed-consent doctrine, a physician must disclose those risks “that a reasonable person in the patient’s situation would consider significant in deciding whether to have the operation.” Gouse v. Cassel, 615 A.2d 331, 334 (Pa. 1992).

1997The Court discussed the doctrine of informed consent in Gray v. Grunnagle, 423 Pa. 144 , 223 A.2d 663 (1966).

1997The Court discussed the doctrine of informed consent in Gray v. Grunnagle, 423 Pa. 144 , 223 A.2d 663 (1966).

2013See Schloendorff v. Society of New York Hospital, 211 N.Y. 125 , 105 N.E. 92, 93 (1914) (Cardozo, J.).

2013See Schloendorff v. Society of New York Hospital, 211 N.Y. 125 , 105 N.E. 92, 93 (1914) (Cardozo, J.).

1996Thus, the patient is assured that he will be provided with “all the material facts from which he can make an intelligent choice as to his course of treatment, regardless of whether he in fact chooses rationally.” Gouse, 532 Pa. at 203 , 615 A.2d at 334 (quoting Cooper v. Roberts, 220 Pa.Super. 260, 266 , 286 A.2d 647, 650 (1971)). (emphasis added). *222 The goal of the informed consent doctrine is to provide the patient with material information which is necessary to determine whether or not to proceed with the surgical procedure.

1996Thus, the patient is assured that he will be provided with “all the material facts from which he can make an intelligent choice as to his course of treatment, regardless of whether he in fact chooses rationally.” Gouse, 532 Pa. at 203 , 615 A.2d at 334 (quoting Cooper v. Roberts, 220 Pa.Super. 260, 266 , 286 A.2d 647, 650 (1971)). (emphasis added). *222 The goal of the informed consent doctrine is to provide the patient with material information which is necessary to determine whether or not to proceed with the surgical procedure.

2006Informed Consent The doctrine of informed consent is grounded upon the theory that a physician is precluded from “administering to, or operating upon, a mentally competent adult patient in non-emergency situations without his consent.” Festa v. Greenberg, 354 Pa. Super. 346, 350 , 511 A.2d 1371, 1373 (1986).

2006Informed Consent The doctrine of informed consent is grounded upon the theory that a physician is precluded from “administering to, or operating upon, a mentally competent adult patient in non-emergency situations without his consent.” Festa v. Greenberg, 354 Pa. Super. 346, 350 , 511 A.2d 1371, 1373 (1986).

2003See Tom v. Lenox Hill Hospital, 627 N.Y.S.2d 874, 876 , 165 Misc.2d 313, 316 (1995) (recognizing battery claim under similar facts and providing that claim ‘does not require expert medical testimony as would normally be tme with an informed consent claim’). 454 Pa. Super. at 37 , 684 A.2d at 615 . (emphasis added) Plaintiffs contend that the case law cited above was rejected by the Supreme Court of Pennsylvania in Montgomery v. Bazaz-Sehgal, 568 Pa. 574 , 798 A.2d 742 (2002).

2003See Tom v. Lenox Hill Hospital, 627 N.Y.S.2d 874, 876 , 165 Misc.2d 313, 316 (1995) (recognizing battery claim under similar facts and providing that claim ‘does not require expert medical testimony as would normally be tme with an informed consent claim’). 454 Pa. Super. at 37 , 684 A.2d at 615 . (emphasis added) Plaintiffs contend that the case law cited above was rejected by the Supreme Court of Pennsylvania in Montgomery v. Bazaz-Sehgal, 568 Pa. 574 , 798 A.2d 742 (2002).

1999Friter v. Iolab Corp., 414 Pa. Super. 622, 626 , 607 A.2d 1111, 1113 (1992).

1999Friter v. Iolab Corp., 414 Pa. Super. 622, 626 , 607 A.2d 1111, 1113 (1992).

2001The Kaskie court reasoned that to "expand the informed consent doctrine to include matters not specifically germane to surgical or operative treatment[, to include] ... facts personal to the treating physician, extends the doctrine into realms well beyond its original boundaries." Id. at 217.

1999In Kaskie , our Court refused to expand the informed consent doctrine to include an action based on a surgeon’s failure to inform a patient that the surgeon was an alcoholic and not licensed to practice medicine, holding that such information was personal to the surgeon and "not specifically germane to surgical or operative treatment." 589 A.2d at 217 .

2025Our Supreme Court has explained that this cause of action sounds in battery: “the informed consent doctrine derives from the very fact that surgical or operative procedures, if not consented to, amount to a battery.” Montgomery v. Bazaz-Sehgal, 798 A.2d 742, 748 (Pa. 2002).

2003See Tom v. Lenox Hill Hospital, 627 N.Y.S.2d 874, 876 , 165 Misc.2d 313, 316 (1995) (recognizing battery claim under similar facts and providing that claim ‘does not require expert medical testimony as would normally be tme with an informed consent claim’). 454 Pa. Super. at 37 , 684 A.2d at 615 . (emphasis added) Plaintiffs contend that the case law cited above was rejected by the Supreme Court of Pennsylvania in Montgomery v. Bazaz-Sehgal, 568 Pa. 574 , 798 A.2d 742 (2002).

2002This distinction has been upheld because Pennsylvania has grounded the doctrine of informed consent “upon the legal theory that the performance of a medical procedure without a patient’s informed consent constitutes a technical assault or battery.” Stover v. Association of Thoracic and Cardiovascular Surgeons, 431 Pa.Super. 11 , 635 A.2d 1047, 1053 (1993) (citation omitted).

2002This distinction has been upheld because Pennsylvania has grounded the doctrine of informed consent “upon the legal theory that the performance of a medical procedure without a patient’s informed consent constitutes a technical assault or battery.” Stover v. Association of Thoracic and Cardiovascular Surgeons, 431 Pa.Super. 11 , 635 A.2d 1047, 1053 (1993) (citation omitted).

2000Hosp., 731 A.2d 603, 614 (Pa.Super.1999), I concur with the majority's conclusion that summary judgment properly was entered in favor of AEMC and against Appellant regarding this issue. ¶ 2 With respect to the majority's determination that the informed consent doctrine did not require Dr. Morros to advise the decedent regarding alternative viable sites for placement of the catheter, I respectfully dissent from the majority and join the dissenting opinion of my esteemed colleague, the Honorable Joseph Del Sole.

2000Hosp., 731 A.2d 603, 614 (Pa.Super.1999), I concur with the majority’s conclusion that summary judgment properly was entered in favor of AEMC and against Appellant regarding this issue. ¶ 2 With respect to the majority’s determination that the informed consent doctrine did not require Dr. Morros to advise the decedent regarding alternative viable sites for placement of the catheter, I respectfully dissent from the majority and join the dissenting opinion of my esteemed colleague, the Honorable Joseph Del Sole.

1997See Malloy v. Shanahan, 280 Pa. Super. 440 , 421 A.2d 803 (1980) (a course of therapeutic treatment has been deemed to fall outside the parameters of the informed consent doctrine).

1997See Malloy v. Shanahan, 280 Pa. Super. 440 , 421 A.2d 803 (1980) (a course of therapeutic treatment has been deemed to fall outside the parameters of the informed consent doctrine).

2001This right to bodily integrity was recognized by the United States Supreme Court over a century ago when it proclaimed “no right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person....” Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001 , 35 L.Ed. 734, 737 (1891). ¶ 16 The right to control the integrity of one’s body spawned the doctrine of informed consent.

2001This right to bodily integrity was recognized by the United States Supreme Court over a century ago when it proclaimed “no right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person....” Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001 , 35 L.Ed. 734, 737 (1891). ¶ 16 The right to control the integrity of one’s body spawned the doctrine of informed consent.

2024Shinal v. Toms, 162 A.3d 429, 452 (Pa. 2017) (“the right to be free from bodily invasion developed the doctrine of informed consent”).

2022See In re Fiori, 673 A.2d 905, 909-10 (Pa. 1996) (“[f]rom [the] right to be free from bodily invasion developed the doctrine of informed consent”); Shinal v. Toms, 162 A.3d 429, 452 (Pa. 2017) (recognizing right to medical self-determination); Coleman v. Workers’ Compensation Appeal Board (Indiana Hospital and Phico Services Company), 842 A.2d 349, 355 (Pa. 2004) 3 Specifically, in Cruzen by Cruzen, the U.S. Supreme Court held that the right of a competent person to refuse unwanted medical treatment or care is a protected liberty interest under the Fourteenth Amendment.

2022See In re Fiori, 673 A.2d 905, 909-10 (Pa. 1996) (“[f]rom [the] right to be free from bodily invasion developed the doctrine of informed consent”); Shinal v. Toms, 162 A.3d 429, 452 (Pa. 2017) (recognizing right to medical self-determination); Coleman v. Workers’ Compensation Appeal Board (Indiana Hospital and Phico Services Company), 842 A.2d 349, 355 (Pa. 2004) 3 Specifically, in Cruzen by Cruzen, the U.S. Supreme Court held that the right of a competent person to refuse unwanted medical treatment or care is a protected liberty interest under the Fourteenth Amendment.

2001See Fiori, supra; Schloendorff v. Society of New York Hospital, 211 N.Y. 125 , 105 N.E. 92, 93 (1914) (Cardozo, J.).

2013(Emphasis added.) And as our Superior Court has observed in relation to the common law antecedent of the statutory provision: “The goal of the informed consent doctrine ‘is to provide the patient with material information necessary to determine whether to proceed with the given procedure or to remain in the present condition.’ Nogowski v. Alemo-Hammad, 456 Pa. Super. 750, 762 , 691 A.2d 950, 957 (1997) (en banc)” Bey v. Sacks, 789 A.2d 232, 238 (Pa. Super. 2001).

2013(Emphasis added.) And as our Superior Court has observed in relation to the common law antecedent of the statutory provision: “The goal of the informed consent doctrine ‘is to provide the patient with material information necessary to determine whether to proceed with the given procedure or to remain in the present condition.’ Nogowski v. Alemo-Hammad, 456 Pa. Super. 750, 762 , 691 A.2d 950, 957 (1997) (en banc)” Bey v. Sacks, 789 A.2d 232, 238 (Pa. Super. 2001).

2008See also Hohns v. Gain, 806 A.2d 16, 19 (Pa.Super.2002); accord Gouse v. Cassel, 532 Pa. 197 , 615 A.2d 331, 333 (1992) (construing prior version of statute).

2005Hohns v. Gain, 806 A.2d 16, 19-20 (Pa.Super.2002).

2003See Tom v. Lenox Hill Hospital, 627 N.Y.S.2d 874, 876 , 165 Misc.2d 313, 316 (1995) (recognizing battery claim under similar facts and providing that claim ‘does not require expert medical testimony as would normally be tme with an informed consent claim’). 454 Pa. Super. at 37 , 684 A.2d at 615 . (emphasis added) Plaintiffs contend that the case law cited above was rejected by the Supreme Court of Pennsylvania in Montgomery v. Bazaz-Sehgal, 568 Pa. 574 , 798 A.2d 742 (2002).

2003See Tom v. Lenox Hill Hospital, 627 N.Y.S.2d 874, 876 , 165 Misc.2d 313, 316 (1995) (recognizing battery claim under similar facts and providing that claim ‘does not require expert medical testimony as would normally be tme with an informed consent claim’). 454 Pa. Super. at 37 , 684 A.2d at 615 . (emphasis added) Plaintiffs contend that the case law cited above was rejected by the Supreme Court of Pennsylvania in Montgomery v. Bazaz-Sehgal, 568 Pa. 574 , 798 A.2d 742 (2002).

2007Given the unique nature of the doctrine and its origins as a technical battery, hospitals cannot be held vicariously liable for a physician’s failure to obtain informed consent because “a medical facility cannot maintain control over this aspect of the physician-patient relationship.” Valles, 569 Pa. at 554 , 805 A.2d at 1239 .

2002Valles, 805 A.2d at 1237. ¶ 12 On November 26, 1996, the Pennsylvania Legislature amended the Health Care Services Malpractice Act (the Act) to *773 substantially codify the common law doctrine of informed consent. 7 40 P.R. § 1301.811-A. In addition, the Act expanded the doctrine to include medical procedures previously excluded under the common law of informed consent, including radiation, chemotherapy, and non-surgical related blood transfusions. 40 P.R. § 1301.811-A(a)(2)-(3). 8 The Act has been interpreted narrowly by the Pennsylvania Supreme Court in Morgan , which appears to indicate th

2000See, e.g., Sinclair by Sinclair v. Block, 534 Pa. 563, 569-571 , 633 A.2d 1137, 1140-1141 (1993) (informed consent does not apply to the natural delivery process, which is not a surgical or operative procedure; doctor thus does not have to obtain patient’s consent to utilize a forceps in delivering a child); Hoffman v. Brandywine Hospital, 443 Pa.Super. 245, 252-254 , 661 A.2d 397, 401 (1995) (discussing cases in which the courts declined to apply the informed consent doctrine to the administration of therapeutic drugs or radiation treatments).

2000See, e.g., Sinclair by Sinclair v. Block, 534 Pa. 563, 569-571 , 633 A.2d 1137, 1140-1141 (1993) (informed consent does not apply to the natural delivery process, which is not a surgical or operative procedure; doctor thus does not have to obtain patient’s consent to utilize a forceps in delivering a child); Hoffman v. Brandywine Hospital, 443 Pa.Super. 245, 252-254 , 661 A.2d 397, 401 (1995) (discussing cases in which the courts declined to apply the informed consent doctrine to the administration of therapeutic drugs or radiation treatments).

1989Jozsa v. Hottenstein, 364 Pa. Super. 469 , 528 A.2d 606 (1987); Festa v. Greenberg, 354 Pa.Super. 346 , 511 A.2d 1371 (1986); Sauro v. Shea, 257 Pa.Super. 87 , 390 A.2d 259 (1978); Jeffries v. McCague, 242 Pa.Super. 76 , 363 A.2d 1167 (1976); Cooper v. Roberts, supra. Most recently, we reaffirmed the paramount importance of the informed consent doctrine, and spoke to the very issue raised by this appellant, in Sagala v. Tavares, 367 Pa.Super. 573 , 533 A.2d 165 (1987).

1989Jozsa v. Hottenstein, 364 Pa. Super. 469 , 528 A.2d 606 (1987); Festa v. Greenberg, 354 Pa.Super. 346 , 511 A.2d 1371 (1986); Sauro v. Shea, 257 Pa.Super. 87 , 390 A.2d 259 (1978); Jeffries v. McCague, 242 Pa.Super. 76 , 363 A.2d 1167 (1976); Cooper v. Roberts, supra. Most recently, we reaffirmed the paramount importance of the informed consent doctrine, and spoke to the very issue raised by this appellant, in Sagala v. Tavares, 367 Pa.Super. 573 , 533 A.2d 165 (1987).

1999See, e.g., Kelly v. Methodist Hosp., 444 Pa.Super. 427 , 664 A.2d 148, 149 (1995). 13 .

1999See, e.g., Kelly v. Methodist Hosp., 444 Pa.Super. 427 , 664 A.2d 148, 149 (1995). 13 .

1993See Gray v. Grunnagle, 423 Pa. 144 , 223 A.2d 663 (1966); Smith v. Yohe, 412 Pa. 94 , 194 A.2d 167 (1963).

1993See Gray v. Grunnagle, 423 Pa. 144 , 223 A.2d 663 (1966); Smith v. Yohe, 412 Pa. 94 , 194 A.2d 167 (1963).