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PRINTER'S NO. 2045
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1580
Session of
2019
INTRODUCED BY SCHEMEL, MOUL, LAWRENCE AND TURZAI, JUNE 7, 2019
REFERRED TO COMMITTEE ON HEALTH, JUNE 7, 2019
AN ACT
Amending the act of March 20, 2002 (P.L.154, No.13), entitled
"An act reforming the law on medical professional liability;
providing for patient safety and reporting; establishing the
Patient Safety Authority and the Patient Safety Trust Fund;
abrogating regulations; providing for medical professional
liability informed consent, damages, expert qualifications,
limitations of actions and medical records; establishing the
Interbranch Commission on Venue; providing for medical
professional liability insurance; establishing the Medical
Care Availability and Reduction of Error Fund; providing for
medical professional liability claims; establishing the Joint
Underwriting Association; regulating medical professional
liability insurance; providing for medical licensure
regulation; providing for administration; imposing penalties;
and making repeals," in medical professional liability,
further providing for informed consent.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 504 of the act of March 20, 2002
(P.L.154, No.13), known as the Medical Care Availability and
Reduction of Error (Mcare) Act, is amended to read:
Section 504. Informed consent.
(a) Duty of physicians.--Except in emergencies, a physician
owes a duty, which may be fulfilled by the physician or the
physician's qualified practitioner as provided in subsection
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(b), to a patient to obtain the informed consent of the patient
or the patient's authorized representative prior to conducting
the following procedures:
(1) Performing surgery, including the related
administration of anesthesia.
(2) Administering radiation or chemotherapy.
(3) Administering a blood transfusion.
(4) Inserting a surgical device or appliance.
(5) Administering an experimental medication, using an
experimental device or using an approved medication or device
in an experimental manner.
(b) [Description of procedure.--] Requirements to obtain
informed consent.--
(1) Consent is informed if the patient or the patient's
authorized representative has been given a description of a
procedure set forth in subsection (a) and the risks and
alternatives that a reasonably prudent patient would require
to make an informed decision as to that procedure. [The]
(2) A physician may delegate the task of obtaining the
informed consent of the physician's patient or the patient's
authorized representative to a qualified practitioner for a
procedure provided in subsection (a) performed by a physician
or qualified practitioner.
(3) If a claim for failure to obtain informed consent is
alleged, the physician or qualified practitioner shall be
entitled to present evidence of the description of that
procedure and those risks and alternatives that a physician
or qualified practitioner, acting in accordance with accepted
medical standards of medical practice, would provide.
(b.1) Information to obtain informed consent.--
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(1) A physician or qualified practitioner performing a
procedure enumerated under subsection (a) may rely on
information provided by another qualified practitioner to
obtain the informed consent of the patient or the patient's
authorized representative.
(2) Information provided by another qualified
practitioner under paragraph (1) shall be competent evidence
in a proceeding in which it is alleged that a physician or
qualified practitioner performing a procedure under
subsection (a) failed to obtain informed consent.
(c) Expert testimony.--Expert testimony is required to
determine whether the procedure constituted the type of
procedure set forth in subsection (a) and to identify the risks
of that procedure, the alternatives to that procedure and the
risks of these alternatives.
(d) Liability.--
(1) [A physician is liable] Liability under this section
for failure to obtain the informed consent may be established
only if the patient proves that receiving such information
would have been a substantial factor in the patient's
decision whether to undergo a procedure set forth in
subsection (a).
(2) [A physician may be held liable] Liability may be
established under this section for failure to seek a
patient's informed consent if the physician or qualified
practitioner knowingly misrepresents to the patient [his or
her] the professional credentials, training or experience[.]
of the physician or qualified practitioner who performs the
procedure.
(e) Human research exception.--The requirement under this
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section shall be deemed satisfied if informed consent is
obtained for human research conducted pursuant to approval by an
institutional review board or similar entity in accordance with
applicable Federal law and regulation.
(f) Applicability.--A physician or qualified practitioner
performing a procedure enumerated under subsection (a) shall not
be required to obtain a separate or new informed consent from
the patient or the patient's authorized representative if
informed consent was already obtained by the physician or
another qualified practitioner with respect to the procedure.
(g) Construction.--Nothing in this section shall be
construed to require a physician to delegate the authority to
obtain informed consent to a qualified practitioner.
(h) Definition.--As used in this section, the term
"qualified practitioner" means a health care practitioner as
defined in section 103 of the act of July 19, 1979 (P.L.130,
No.48), known as the Health Care Facilities Act, who:
(1) has knowledge of the patient's condition and the
procedure enumerated under subsection (a) to be conducted on
the patient; and
(2) is acting under the supervision of, at the direction
of or in collaboration with a physician.
The term shall include another physician and a physician
participating in a medical residency or fellowship training
program.
Section 2. This act shall apply to any action in which a
final order has not been entered as of the effective date of
this section.
Section 3. This act shall take effect in 60 days.
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