April 16, 2017

162017_132140396847214_292624_nIn its unpublished opinion filed on March 29, 2017, the Superior Court of Pennsylvania (“Appellate Court”) ruled that it was error for the trial court to have allowed the defense to introduce evidence of the known risks and complications of a surgical procedure in a medical malpractice case where informed consent was not raised as an issue by the plaintiff. Therefore, the Appellate Court reversed the Pennsylvania medical malpractice jury’s defense verdict and remanded the case for a new trial.

The Underlying Facts

On May 16, 2012, the defendant obstetrical and gynecological surgeon performed a laparoscopic hysterectomy on the plaintiff at the defendant hospital. During the procedure, the defendant surgeon nearly severed the plaintiff’s bowel while opening the sheath of the peritoneum. A general surgeon was called into the operating room to repair the plaintiff’s bowel, which was found to be nearly cut in half. The plaintiff was required to temporarily wear a colostomy bag after the surgery.

On December 16, 2013, the plaintiff filed her Pennsylvania medical malpractice case. On January 25, 2016, the plaintiff filed a Motion In Limine seeking to exclude consent and risk/complications evidence at trial. The trial court granted the plaintiff’s Motion as to the lack of consent, because she had not raised such a claim in her medical malpractice action, but the trial court denied her Motion as to the whether a bowel injury was a known risk or complication of the surgery, and allowed such evidence to be presented at trial.

On February 5, 2016, the Pennsylvania medical malpractice jury returned its verdict in favor of the defendants. The plaintiff appealed.

The Appellate Court Opinion

The Appellate Court held that while evidence of risks and complications of a surgical procedure may be admissible to establish the relevant standard of care, in this case such evidence was irrelevant in determining whether the defendant surgeon acted within the applicable standard of care. The Appellate Court acknowledged that there is a liberal threshold to determine the relevancy of such evidence, but the evidence must be probative of whether the defendant’s treatment of the plaintiff fell below the standard of care.

The Appellate Court stated that the fact that one of the risks and complications of the laparoscopic hysterectomy, i.e., the perforation of the bowel, was the injury suffered by the plaintiff does not make it more or less probable that the defendant surgeon conformed to the proper standard of care for a laparoscopic hysterectomy and was negligent (the plaintiff expects that the treatment will be rendered in accordance with the applicable standard of care, regardless of the risks).

Moreover, the Appellate Court stated, 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. The Appellate Court held that the risks and complications evidence was immaterial to the issue of whether the defendant surgeon’s treatment of the plaintiff met the standard of care, and such evidence was inadmissible.

Source Mitchell v. Shikora, No. 384 WDA 2016.

If you or a loved one suffered serious harm in Pennsylvania or in another U.S. state that may be due to medical malpractice, you should promptly find a Pennsylvania medical malpractice lawyer, or a medical malpractice lawyer 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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