Defense Digest

The National

The Pennsylvania Superior Court rejected an effort to expand the intentional tort of lack of informed consent in Isaac v. Jameson Memorial Hospital and Rifaatt Bassaly, M.D., 2007 Pa Super 250, 2007 Pa Super LEXIS 2638 (2007) (August 22, 2007). The court held that Medicaid regulations to which a health care provider must comply to receive reimbursement for a sterilization procedure are not relevant to a lack of informed consent claim against a hospital and/or a physician relating to that procedure. The Superior Court decision is consistent with Pennsylvania case law and statutes which have tightly limited the parameters of this claim.

The Superior Court held that the trial court properly refused to grant a directed verdict in favor of the plaintiffs and against the hospital and Dr. Bassaly because they failed to comply with the Medicaid regulations. The jury then found in favor of the hospital and Dr. Bassaly. Mrs. Isaac, who was eight months pregnant, saw Dr. Bassaly on October 21, 1997, and executed an authorization for a bi-lateral partial salpingectomy (tubal ligation procedure to permanently prevent pregnancy). On November 21, 1997, Mrs. Isaac was admitted to Jameson Memorial Hospital. Immediately after her cesarean section, Dr. Bassaly performed the tubal ligation procedure. However, Mrs. Isaac claimed that on November 21, 1997, she withdrew all previous consents.

The Medicaid regulations applied to the procedure as Mrs. Isaac was a participant in Pennsylvania Medical Assistance Program. The regulations include requirements (i.e., age, competency, consent form and timing) for a health care provider to receive reimbursement. These regulations were adopted in 1979 after cases of sterilization abuse involving minors and mentally incompetent individuals.

In rejecting the Isaacs' claim, the court described a claim of lack of informed consent:

It is the conduct of the unauthorized procedure that constitutes the tort. Moure v. Raeuchle, 529 Pa. 394, 604 A.2d 1003, 1008 (1992). A claim of a lack of informed consent sounds in the intentional tort of battery because an operation performed without the patient's consent is deemed to be the equivalent to a technical assault. Smith v. Yohe, 412 Pa. 94, 194 A.2d 167, 174 (1963).

As to the lack of informed consent claim against the hospital, the Superior Court refused to find an exception to the general rule that a hospital may not be liable for a physician's failure to obtain informed consent. The Superior Court found that these Medicaid regulations relate only to preconditions for federal reimbursement and do not create an independent duty for a hospital.

As to the lack of informed consent claim against Dr. Bassaly, the Superior Court found that the Medicaid regulations did not create a legal standard for lack of informed consent as the regulations impose administrative rather than legal obligations. The regulations address a method of payment for medical services, and adopting them as a legal standard would result in the unequal treatment of individuals based on payment methods. It would also expand the rule of informed consent:

Doctors obtain a patient's informed consent when they provide 'material information' necessary for the patient to determine whether to proceed with a procedure; they are not required to disclose 'all known information,' but only to 'advise the patient 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.'

Consistent with this approach, the court rejected the Isaacs' argument that the timing of the consent made it invalid and noted "the additional responsibilities the Isaacs seek to impose on physicians in obtaining a patient's informed consent exceed the exchange of 'material information'' our case law requires" and are more in line with a negligence claim.

Although not addressed in the opinion, there was an informed consent statute in effect in 1997 (40 P.S. § 1301.811-A to1301.813-A (effective January 25, 1997) which has now been repealed and replaced by 40 P.S. §1303.504(B). Under both versions of the statute, the Isaacs' claim would fail.

As this opinion indicates, the trend against expanding this tort continues.

*Wendy is a shareholder in the Healthcare Liability Practice Group and is in the firm's King of Prussia, Pennsylvania, office. She can be reached at (610) 354-8256 or wjbracaglia@mdwcg.com.