Pennsylvania Supreme Court accepts review to determine whether evidence of known risks and complications of a procedure may be admitted at trial in a medical malpractice matter when plaintiff does not pursue a claim for failure to obtain informed consent.

The Pennsylvania Supreme Court granted review in this matter to determine whether or not the Pennsylvania Superior Court committed an error of law when it reversed and remanded the matter for a new trial, directing the trial court to exclude evidence of known risks and complications of a hysterectomy procedure, holding that such evidence is not relevant, because the plaintiff did not pursue an informed consent claim at trial.

The plaintiff alleged that the physician-defendant, Dr. Shikora, negligently sliced her bowel during a hysterectomy performed on May 16, 2016. The trial court excluded evidence regarding the plaintiff’s consent to undergo the hysterectomy, but permitted Dr. Shikora to introduce evidence at trial, that a bowel injury is a known risk of a hysterectomy surgery, even when that surgery is performed in a medically appropriate manner. The jury returned a verdict in favor of the defendants.

In her appeal, the plaintiff asserted that the Supreme Court’s holding in Brady v. Urbas, 111 A.3d 1155 (Pa. 2015) precluded evidence of known risks and complications, because she did not pursue a claim for failure to obtain informed consent at trial.

The Pennsylvania Superior Court held that, under Brady, evidence that a bowel injury is a known risk or complication of a hysterectomy does not make it more or less probable that Dr. Shikora was negligent when performing the hysterectomy. The Superior Court also held that juries may be confused and misled by evidence regarding known risks and complications because juries may improperly believe that a plaintiff’s injuries were the result of an accepted risk, not as a consequence of a physician’s negligence. The Superior Court reversed the trial court decision and remanded for a new trial.

The Pennsylvania Supreme Court granted allocatur to determine whether, under Brady v. Urbas, a defendant is permitted to introduce evidence regarding known risks and complications of a surgical procedure in a medical malpractice claim and in the absence of an informed consent claim. It is expected that the Supreme Court will clarify the application of the Brady holding and draw a clear line regarding the degree to which evidence of known risks and complications of a surgical procedure may be introduced during trial in a medical malpractice matter that does not include a claim for failure to obtain informed consent. 

_{Case Law Alerts, 4^th Quarter, October 2018}

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