In its decision filed on June 18, 2019, the Supreme Court of Pennsylvania Western District (“Pennsylvania Supreme Court”) stated in a medical malpractice appeal, “While evidence that a specific injury is a known risk or complication does not definitively establish or disprove negligence, it is axiomatic that complications may arise even in the absence of negligence … if injury results from the course adopted, where no negligence or fault is present, liability should not be imposed upon the institution or agency actually seeking to assist the patient … As a result, risks and complications evidence may clarify the applicable standard of care, and may be essential to provide, in this area, a complete picture of that standard, as well as whether such standard was breached. Stated another way, risks and complications evidence may assist the jury in determining whether the harm suffered was more or less likely to be the result of negligence. Therefore, it may aid the jury in determining both the standard of care and whether the physician’s conduct deviated from the standard of care.”
The Pennsylvania Supreme Court stated that an action asserting a lack of informed consent is distinct from a claim of medical negligence. That being the case, admitting evidence that a patient is informed of certain risks in a pure negligence action can erroneously suggest to the jury that the patient has consented to negligence. Additionally, such evidence can confuse the jury and cause it to stray from assessing the central question of whether the physician’s actions conformed to the applicable standard of care.
However, in a 2015 case, the Pennsylvania Supreme Court held that although evidence of a patient’s informed consent to a procedure is generally irrelevant to the issues of standard of care and breach of duty and may confuse the jury, evidence of the risks of the procedure themselves may be relevant and admissible. Specifically, there is a distinction between the admission of informed-consent evidence ― such as consent forms, or communications between a physician and a patient regarding the purpose, nature, and risks of surgery ― and the admission of evidence of the risks and complications of surgery (“in a trial on a malpractice complaint that only asserts negligence, and not lack of informed consent, evidence that a patient agreed to go forward with the operation in spite of the risks of which she was informed is irrelevant and should be excluded”).
In the present case, the Pennsylvania Supreme Court stated: “We find that, without the admission of testimony of known risks or complications, where appropriate, a jury may be deprived of information that a certain injury can occur absent negligence, and, thus, would be encouraged to infer that a physician is a guarantor of a particular outcome. While we recognize that this determination allows for the potential that a jury might mistakenly conclude that an injury was merely a risk or complication of a surgery, rather than as a result of negligence, we believe that the significant consequences of a prohibition on such evidence tip the scales in favor of admissibility; moreover, we are confident that trial judges will serve their evidentiary gate-keeping function in this regard and, through instruction and comment, ensure that juries understand the proper role of such evidence at trial … we find that the trial court herein properly distinguished between informed-consent evidence, which it did not admit, and surgical risks and complications evidence, which it admitted.”
Source Mitchell v. Shikora, J-77-2018.
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