• Superior Court Refuses to Allow Evidence of Risks or Complications Associated with Surgery from Coming Into Evidence in Medical Malpractice Case without an Informed Consent Claim.
  • July 13, 2017 | Author: Daniel Dolente
  • Law Firm: Marshall Dennehey Warner Coleman & Goggin, P.C. - Philadelphia Office
  • Mitchell v. Shikora, 2017 Pa. Super 134, 2017 Pa. Super. LEXIS 322 (Pa. Super. May 5, 2017)

    The Pennsylvania Superior Court recently extended the holding of Brady v. Urbas, which ruled that, generally, a patient’s informed consent to the risks of treatment is irrelevant in a medical malpractice case that does not have an informed consent claim. An obstetrical and gynecological surgeon performed a hysterectomy on the plaintiff, during which the surgeon severed the plaintiff’s bowel. As a result, the plaintiff had to have ileostomy surgery. At trial, the plaintiff filed a motion in limine, seeking to exclude the evidence of consent to the surgery and the risk/complications of the surgery. The trial court granted the motion as to the plaintiff’s consent but allowed evidence that a bowel injury was a known risk or complication of the surgery. Defense counsel referenced the bowel injury as a complication of the surgery during opening and closing. Further, the defense expert witness referenced bowel injuries as a common complication of a hysterectomy during his examination. After the jury returned a defense verdict, the plaintiff appealed. On appeal, the Superior Court reversed the trial court, holding that any evidence of the risks and complications of the hysterectomy was irrelevant as to whether the surgeon’s treatment of the plaintiff fell below the standard of care. In support of this holding, the Superior Court reasoned that the evidence would tend to mislead and/or confuse the jury by leading it to believe that the plaintiff’s injuries were simply the result of the risks and complications of the surgery. While Mitchell still leaves the door open to allow risks and complications to be admissible to establish the relevant standard of care, the Superior Court found that the risks and complications, including a bladder injury, did not establish the relevant standard of care in this case and, as such, was inadmissible evidence.