“I’m going to give the standard charge.” As medical malpractice attorneys we are used to hearing this common refrain from the court. Whether explicit or implied, the court may often express the adage that “no one has ever been reversed giving the standard instruction.” But what happens when the law changes and the standard charge is wrong? Since 2021, Pennsylvania Suggested Standard Civil Jury Instruction Number 14.90 “Informed Consent-Nondisclosure” has been in direct conflict with Pennsylvania law.

In 2021, Section 504(b) of the MCARE Act was amended to address and abrogate the Pennsylvania Supreme Court’s holding in Shinal v. Toms, 162 A.3d 429 (Pa. 2017). In Shinal, the high court held that a physician had a nondelegable duty to personally obtain informed consent from a patient. This meant that only the physician providing the care at issue could obtain informed consent, and pre-operative communications between other members of the medical team and the patient were legally insufficient and irrelevant. The decision imposed a regime that conflicted with common medical practices. Both the American Medical Association and the Pennsylvania Medical Society filed amicus briefs unsuccessfully arguing that the informed consent process may include the involvement of colleagues and other qualified staff acting on behalf of a surgeon.