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Lack of Informed Consent in Pennsylvania

In Pennsylvania, as in many other states, certain medical professionals must obtain a patient’s “informed consent” before moving forward with a procedure. “Informed consent” basically means that a medical professional has disclosed information that a reasonably prudent provider should give a patient regarding a proposed treatment, and the patient has made a knowing decision to undergo the procedure.

When certain health care providers fail to obtain consent, the patient may have a legal claim for damages. However, in Pennsylvania, not all providers need to obtain consent.

In a recent case, a woman was treated by two chiropractors. She complained about neck pain, dizziness, and headaches. Both chiropractors treated her with cervical neck manipulations and mobilizations.

On the morning of her last visit with one of them, she experienced a vertebral artery dissection. She also suffered a major stroke that left her “locked-in.” She was aware, but unable to move, except for her eyes. She died about 18 months later because of a severe infection.

Her estate sued the chiropractors for negligence and lack of informed consent. The complaint alleged the chiropractors’ negligence made it more likely that the deceased would suffer a vertebral injury or stroke. Expert witnesses were put forward to testify that the chiropractors’ treatments caused the woman’s injury.

Before trial, the trial court granted the chiropractors’ requests to exclude the lack of informed consent, wrongful death and survival claims. The chiropractors prevailed at trial.

The estate asked a Pennsylvania appellate court to review whether the trial court erred in dismissing the lack of informed consent claim and whether the trial court erred in denying the plaintiff’s motion to amend the complaint to include a survival cause of action.

The appellate court explained that, in Pennsylvania, a lack of informed consent claim cannot be brought against a chiropractor for performing chiropractic manipulations. This is because they are non-surgical procedures.

Failure to obtain informed consent in Pennsylvania is a cause of action restricted to medical surgeries and operations, which chiropractors may not perform anyway. The appellate court explained that this is because the invasive nature of operations gives rise to the need to tell the patient of the risks.

The estate asked the appellate court to follow the rule in Wisconsin, which requires chiropractors to obtain informed consent from patients. Case law in that state had found no meaningful distinction between chiropractors and surgeons for purposes of the need for informed consent.

The appellate court declined to follow the Wisconsin rule, explaining it needed to follow Pennsylvania precedent even though the state takes a minority position.

The estate also argued it should have been able to include a cause of action that arose from the Survival Act, which permitted all real or personal causes of action to survive the death of the plaintiff.

The appellate court explained that, in this case, the woman died in 2008 and the estate was substituted as plaintiff two months later. In Pennsylvania survival actions, the statute of limitations begins to run at death. The estate didn’t try to amend the complaint to add a Survival Act claim until well after the two-year period.

The appellate court ruled that the trial court didn’t err in refusing to allow the estate to amend its complaint to include a Survival Act cause of action.

If you are seriously injured or a loved one is killed as a result of a health care provider’s negligence or failure to provide you with information you needed to make an informed decision, you may have grounds for a lawsuit. An experienced Pennsylvania personal injury and medical malpractice attorney can evaluate your case and if appropriate, bring a lawsuit on your behalf to help you obtain the compensation you deserve. Contact the attorneys at Needle Law Firm at 570-344-1266 or via our online form for a free consultation.

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