Pennsylvania Supreme Court Weighs Eliminating Informed Consent Defense In Medical Malpractice Cases

162017_132140396847214_292624_nThe Supreme Court of Pennsylvania (“Pennsylvania Supreme Court”) is weighing whether to eliminate informed consent as a defense in strictly medical malpractice cases, acknowledging that patients do not consent to negligent medical treatment.

On November 18, 2014, the Pennsylvania Supreme Court heard oral arguments in a case that was appealed from the Pennsylvania Superior Court (the intermediate appellate court). The medical malpractice plaintiff seeks the Pennsylvania Supreme Court to issue a blanket prohibition regarding the introduction of informed consent forms signed by patients in medical malpractice cases in Pennsylvania.

The Superior Court had determined that it was improper during the medical malpractice jury trial for the defendant surgeon to have introduced and repeatedly referred to the plaintiff’s signed consent form in a strictly medical malpractice case. The issue on appeal to the Pennsylvania Supreme Court is whether the Superior Court should have adopted a blanket prohibition of such evidence.

The plaintiff had four surgeries performed on her toe by the defendant surgeon that resulted in a shortened toe. The plaintiff and her husband filed a medical malpractice lawsuit against the surgeon, alleging medical negligence and loss of consortium. After the plaintiffs lost at trial, the Superior Court granted a new trial, finding that the defense’s repeated references to informed consent during trial was improper because the plaintiff’s complaint was that the surgeries should not have been performed.

The plaintiff’s lawyer argued that the consent form signed by the plaintiff was used by the defense to argue that the plaintiff’s consent for surgery was equivalent to her consent to suffer the injuries she sustained. The plaintiff’s lawyer pointed out that the medical negligence claim (i.e., that the surgeon breached the standard of care when the surgeon recommended surgery) occurred before the informed consent form was signed by the plaintiff; therefore, the informed consent form was irrelevant and should not have been introduced or discussed during the medical malpractice trial.

The defense argued that the informed consent form signed by the plaintiff was relevant to the plaintiff’s state of mind at the time of the surgeries as well as to the plaintiff’s credibility, and that the potential risks and complications set forth in the informed consent form were relevant to the determination as to whether the defendant surgeon had performed the surgeries negligently and whether the defendant surgeon was negligent with regard to the treatment associated with the complications from the surgeries.

It is unknown when the Pennsylvania Supreme Court will issue its opinion in this medical malpractice appeal.


If you or a loved may be the victim of negligently performed surgery in Pennsylvania or in another U.S. state, you should promptly consult a Pennsylvania medical malpractice attorney or a medical malpractice attorney in your state who may investigate your medical negligence claim for you and represent you in a medical malpractice case, if appropriate.

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This entry was posted on Monday, November 24th, 2014 at 6:27 am. Both comments and pings are currently closed.


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