A recent ruling from the Pennsylvania Supreme Court has held that a medical provider performing any type of surgery has a non-delegable duty to obtain informed consent directly from its patients.

A recent ruling from the Pennsylvania Supreme Court has held that a medical provider performing any type of surgery has a non-delegable duty to obtain informed consent directly from its patients. This ruling, issued in the case of Megan and Robert Shinal v. Steven Toms, M.D., breaks from prior case law suggesting that it was sufficient for support staff to obtain the informed consent of a patient, and prohibits a physician (or dentist) from delegating his or her duty to obtain a patient’s informed consent prior to surgery. The court emphasized that informed consent requires a conversation between the individual performing the surgery and the patient where treatment options are discussed, the patient is able to ask questions, and ultimately, the surgeon believes that “the patient comprehends the risks, benefits, likelihood of success, and alternatives.”

In light of this holding, all dentists performing surgical procedures (including, among other things, procedures such as root canals, extractions, and implants) should be aware of the following:

1)    The dentist performing the surgery must personally obtain informed consent directly from the patient prior to performing surgery. This means that the dentist must discuss the procedure with the patient and ensure that the patient understands the associated risks as well as alternative treatment options. This duty cannot be delegated to dental hygienists, assistants, or any other support staff.

2)    In addition to discussing the treatment directly with the patient, the treating dentist should require that the patient sign a written consent document which lists the risks associated with the relevant procedure.  The dentist should also execute the document as a representation that he has discussed the procedure with the patient and given them the opportunity to ask questions.

3)    The conversation between the patient and dentist should be recorded in the patient’s chart.

The consequences stemming from a failure to obtain informed consent in connection with surgery can be severe.  Please be sure to consult an experienced attorney should you have any questions with respect to your obligations.