upon lack of adequate informed consent.
Fervent dissent
How surprising was the decision? Not only is it wholly inconsistent
with all precedent, but, as a dissenting justice points out
(osmag.net/bzny4t), it mandates a dynamic that could have seri-
ous repercussions not only for physicians, but also for patients.
In "respectfully but fervently dissent[ing]," the justice wrote, "I fear
that today's decision will have a far-reaching, negative impact on the
manner in which physicians serve their patients. For fear of legal lia-
bility, physicians now must be involved with every aspect of informing
their patients' consent, thus delaying seriously ill patients access to
physicians and the critical services that they provide."
Although the decision immediately affects physicians in only one
state, it's certainly possible that the same argument could be made in
other jurisdictions and that other courts could look to Pennsylvania
for guidance. It's safe to presume that physicians and hospitals every-
where are now on guard, along with the American Medical
Association, state medical societies and others, all of which will be
keeping a close eye on this.
In fact, the AMA argued in an amicus brief that there was "simply no
logical reason" as to why any information given to the patient should
be discounted in a negligence case, solely because the surgeon "did
not himself provide it." The idea that "the patient had the relevant
information but the 'wrong person' provided it and therefore the
physician has not obtained informed consent, surely places form over
substance," said the AMA.
Improper touching?
One of the puzzling aspects of the decision is that informed consent
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