June 28th, 2019 by Rieders Travis in Medical Malpractice

Mitchell vs. Shikora, 174 A.3d 573 (Pa. 2015),Pa Supreme Court, decided June 18, 2019.  The court determined that risks and complications of surgery may be admissible at trial therefore reversing the Superior Court.  The trial court had allowed in such evidence and there was a defense verdict.   Patient’s theory was that Dr. Shikora failed to identify patient’s colon before making an incision into her abdomen and that constituted breach of the applicable standard.   The defense was that cutting the bowel was a risk of the laparoscopic hysterectomy.  The court found that risks and complications through expert testimony were admissible.   The defense was that the procedure is “blind.”  The court noted that a new Standard Jury Instruction might be necessary.  Informed consent, if not pled, is not admissible.   However, evidence about the risk of surgical procedures in the form of testimony or list of such risks as they appear on the informed consent sheet may be relevant.  This evidence may potential leave a juror to conclude that an injury was merely the risk or complication of a surgery rather than as a result of negligence.   We are confident that trial judges will serve their gate-keeping function and give thorough instruction and comment to ensure the juror’s role.   Opinion Page 8.   Studies and expert testimony on known risks and complications are admissible.   Such evidence is admissible subject to judicial concerns and relevancy, reliability and disqualifying considerations such as undo prejudice.   The court does not give examples of any of that.