has never shielded physicians from accusations of negligence or harm
that occurs through negligence. From a public policy standpoint,
there was already more than adequate protection afforded to patients.
But now, in the absence of properly obtained informed consent, any
touching of a patient that hasn't been consented to can be considered
battery, which opens the door to a scenario in which physicians
potentially face liability for non-negligent harm that's an inherent risk
to a given procedure. Hence, the ruling has created a new and differ-
ent duty and obligation that never previously existed.
Will it stand the test of time? Hard to say. I do think it will be chal-
lenged, and my best guess is it will turn out to be an anomaly. But at
least for now, it bears watching.
From a practical standpoint, it may create another impediment to
quality health care. Many physicians are already being pulled in count-
less directions, trying to handle not just clinical responsibilities, but
also duties related to administration, teaching, committees, technolo-
gy, EHRs, insurance, coding and compliance. A ruling like this has the
potential to impact efficiency and throughput by altering resource
allocation. A physician who planned to see 10 patients in a given day
may have to turn 2 or 3 away because of the time needed to personal-
ly handle a lengthy informed consent discussion.
The bottom line: Speaking to a smart, well-educated, experienced
associate no longer suffices.
OSM
Mr. Villalobos (rmvillalobos67@icloud.com) is a member of the Eckert
Seamans law firm in Philadelphia, Pa. He has extensive experience in health
law, professional liability and physician misconduct cases, among other
areas of expertise.
Medical Malpractice
MM
3 6 • O U T PA T I E N T S U R G E R Y M A G A Z I N E • N O V E M B E R 2 0 1 7
