In its decision dated March 25, 2015, the Supreme Court Of Pennsylvania Middle District (“the Court”) held that in a medical malpractice case where the plaintiff has not raised a lack of informed consent claim, informed consent evidence is irrelevant to the issues to be decided by the jury and may confuse the jury if admitted into evidence (“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”).
Informed Consent Doctrine
Under the informed consent doctrine in Pennsylvania, a physician must disclose those risks that a reasonable person in the patient’s situation would consider significant in deciding whether to have the procedure. A lack-of-informed-consent claim sounds in battery rather than negligence.
The Court stated, “the fact that a patient may have agreed to a procedure in light of the known risks does not make it more or less probable that the physician was negligent in either considering the patient an appropriate candidate for the operation or in performing it in the post-consent timeframe. Put differently, there is no assumption-of-the-risk defense available to a defendant physician which would vitiate his duty to provide treatment according to the ordinary standard of care. The patient’s actual, affirmative consent, therefore, is irrelevant to the question of negligence … assent to treatment does not amount to consent to negligence, regardless of the enumerated risks and complications of which the patient was made aware.”
However, the Court was unwilling to impose a per se exclusionary rule regarding informed consent evidence in medical malpractice cases where the plaintiff has not raised the lack of informed consent as a cause of action. The Court stated that under certain limited circumstances, informed consent evidence may be probative of the issue whether the defendant’s treatment fell below the appropriate standard of care: for example, if the standard of care requires that the doctor discuss certain risks with the patient. Also, the evidence about the risks of surgical procedures, in the form of either testimony or a list of such risks as they appear on an informed consent form, may be relevant in establishing the standard of care; or where the standard of care differs from one geographic region to another (for example, if the defendant physician worked in a medical office in a remote location that lacked advanced equipment that would ordinarily be present in a large metropolitan area).
Nonetheless, the Court stated that assent to treatment does not amount to consent to negligence, regardless of the enumerated risks and complications of which the patient was made aware, and held that 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.
Source Brady, et al. v. Urbas, No. 74 MAP 2014.
If you suffered serious harm in Pennsylvania that may be due to medical negligence, you should promptly find a Pennsylvania medical malpractice lawyer who may investigate your medical malpractice claim for you and represent you in a Pennsylvania medical malpractice case, if appropriate.
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