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A hospital cannot be held vicariously liable for a physician’s failure to obtain informed consent, a split Pennsylvania Supreme Court has ruled in an issue of first impression. The high court, led by Justice Ralph J. Cappy, said the duty to obtain informed consent rests solely with the doctor. “Informed consent flows from the discussions each patient has with his physician, based on the facts and circumstances each case presents,” Cappy wrote in Valles v. Albert Einstein Medical Center. “We decline to interject an element of a hospital’s control into this highly individualized and dynamic relationship. “Thus, we hold that as a matter of law, a medical facility lacks the control over the manner in which the physician performs his duty to obtain informed consent so as to render the facility vicariously liable.” As a secondary issue, the court said the manner or method in which a surgeon performs a proposed procedure is not encompassed within the informed consent doctrine. The underlying medical malpractice suit stemmed from two separate medical procedures on patient Lope Valles. On Nov. 14, 1992, Valles was admitted to Einstein for a suspected abdominal aortic aneurysm. An aortogram was scheduled with Dr. Steven Allen. The written consent form does not disclose the risk of renal damage or alternatives to the procedure, but Allen said it was his general custom to inform the patient of the risks. The procedure led to damage to Valles’ kidneys, according to the opinion. Because of his need of continuing dialysis, doctors recommended Valles get a Permacath, a catheter that was more suitable for longer periods of dialysis. Dr. Jay Morros made the decision to insert the catheter into Valles’ right subclavian vein during surgery, according to court papers. Valles suffered a hemopneumothorax, in which the chest cavity fills with blood and air, and cardiac arrest during the procedure. Valles remained in a coma after resuscitation and died on Jan. 16, 1993. Valles’ brother and sister, administrators of his estate, sued the hospital and Morros, alleging lack of informed consent and vicarious liability on behalf of the hospital. The Philadelphia Court of Common Pleas dismissed both Einstein and Morros. A three-judge Superior Court panel affirmed the trial court in December 1999. The plaintiffs asked for an en banc review, and a split court affirmed the panel’s decision. The Pennsylvania Supreme Court first tackled the issue of whether a hospital can be held vicariously liable for a doctor’s failure to obtain a patient’s informed consent. “Because a hospital has an obligation to oversee all persons who practice medicine within its walls, appellant maintains that the hospital as an employer and health care provider in its own right maintains a right of control in the relationship sufficient to justify the imposition of liability,” Cappy wrote. “Appellee responds that historically in Pennsylvania, the duty to obtain informed consent rests only with the physician performing the surgical procedure, except in limited circumstances not present here. Thus, a medical facility such as [Einstein] cannot be held vicariously liable for the physician’s failure to perform this non-delegable duty.” The court said vicarious liability was at issue because of the alleged master-servant relationship between the doctor and the hospital. As a general rule, a master may be held liable for acts of its servant if such acts are within the course and scope of the servant’s employment. The court said that Allen was not an “employee” of Einstein and, therefore, that the hospital could not be held vicariously liable for his actions. “Appellant asserts, without citation to the record, that Allen’s exercise of independent medical judgment was subject to [Einstein's] right of control because: his work may not be delegated to others, except as the hospital’s rules permit; his medical findings must be reported in a manner and within a time frame set by hospital policy; and he must perform the requested study according to departmental protocols and schedules,” Cappy wrote. The high court also said that even if Allen were an employee, the battery that results from a lack of informed consent is not the type of action that occurs within the scope of employment. “In our view, a medical facility cannot maintain control over this aspect of the physician-patient relationship,” the court said. Cappy said that informed consent flows from individual doctor/patient interaction and that the high court would not interject a hospital’s control in such an individualized relationship. “Because of the unique nature of the informed consent doctrine, we find a battery in this context to be distinguishable from those cases in which an employer has been held vicariously liable for its employee’s assault,” Cappy wrote. The court next turned to a cross-appeal filed by Morros in which he argued that the Superior Court erroneously extended the scope of informed consent to include the explaining of the manner or method of surgery. The high court sided with Morros. “We find that the manner or method in which the surgeon performs the proposed procedure is not encompassed within the purview of the informed consent doctrine,” Cappy wrote. “Although there were several methods of performing the particular surgery, there was only one surgery proposed: the insertion of a Permacath.” The court said the placing of the catheter in the subclavian vein was an issue of negligence, not informed consent, and the trial court properly entered judgment for Morros on the informed consent claim. The high court’s decision affirmed the Superior Court. Former Chief Justice John P. Flaherty did not participate in the decision. Justice Thomas Saylor filed a concurring and dissenting statement. Justice Russell M. Nigro filed a dissenting opinion. In his brief opinion, Saylor said he disagreed with the majority’s conclusion that a hospital should not be held vicariously liable for a doctor’s failure to get informed consent. Nigro disagreed with the majority on both counts. Nigro said evidence showed that Allen was indeed an employee of Einstein at the time the aortogram was performed. Nigro also said he disagreed with the majority’s holding on the issue of vicarious liability. “A physician’s relationship with the hospital and the hospital may be vicariously liable when the physician fails to properly perform a surgery,” Nigro wrote. “Moreover, a physician’s duty to obtain a patient’s informed consent before the surgery is an integral part of the performance of the surgery. “In my view, therefore, the physician’s duty to obtain a patient’s informed consent before performing the surgery is included within the scope of the physician’s employment relationship with the hospital.” Nigro said that he agreed with the majority’s ruling that the Superior Court improperly extended the scope of informed consent but that he believed a patient should be informed of something such as the various locations for surgery and the risks involved. “In my view, where a physician believes that there is more than one viable site for performing a surgical procedure, the location for the procedure concerns alternative types of treatment available to the patient,” Nigro wrote. “Further, the patient should be advised of those alternative types of treatment, i.e., the viable locations for the surgery, as well as the risks associated with each location.” Michael G. Sabo and Daniel N. German of Philadelphia-based Mylotte, David & Fitzpatrick represented Einstein. Marion H. Griffin of Philadelphia-based Marshall, Dennehey, Warner, Coleman & Goggin represented Morros. Jonathan A. Briskin and Pamela E. Lewis of Briskin & Lewis in Bryn Mawr, Pa., represented Valles’ estate.

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