Sunday, July 21, 2019

Evidence of Risks and Complications of Surgery Allowed in Med Mal Cases



A notable medical malpractice decision was recently handed down by the Pennsylvania Supreme Court.  

In the case of Mitchell v. Shikora, No. 55 WAP 2017 (Pa. June 18, 2019) (majority Op. by Todd J.) (Wecht, J., concurring) (Donohue, J., concurring and dissenting), the court ruled that evidence of risk and complications of surgery may be admissible in a medical negligence trial since such evidence is relevant and admissible regarding the proper standard of care and whether there was a breach of that standard of care.  

This matter arose out of a medical malpractice action in which the Plaintiff alleged negligence on the part of a surgeon during the course of a laparoscopic hysterectomy.  

Prior to trial, the Plaintiff filed a Motion In Limine to exclude evidence of her informed consent about the risks and complications of the surgery, which included the very situation that arose during the course of the surgery in this matter.   The court denied the motion with respect to the very situation that was at issue in this case.

At trial, the Defendants presented testimony that the event that occurred during the course of the surgery was a recognized risk or complication of the overall surgery.   The jury returned a defense verdict.  

On appeal, the Superior Court had reversed and remanded the case for a new trial under a rationale that, in a malpractice action only alleging negligence and not lack of informed consent, evidence that a patient consented to an operation despite the advised risks was irrelevant and inadmissible.  The Superior Court had also found that the admission of this evidence was prejudicial.  

As noted, the Pennsylvania Supreme Court ruled otherwise and held that evidence of risk and complications of surgery was indeed admissible in a medical negligence claim to establish the applicable standard of care and to show that the physician’s conduct complied with that standard.  As such, the defense verdict was reinstated.  

The Majority Opinion of the Supreme Court can be viewed HERE.

Justice Wecht's Concurring Opinion can be viewed HERE.

Justice Donohue's Concurring and Dissenting Opinion can be viewed HERE.


Source: “Court Summaries” By Timothy L. Clawges in the Pennsylvania Bar News (July 15, 2019).  

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