Supreme Court’s Impact on Informed Consent Defenses

In recent years there has been an increase in lack of informed consent claims within medical malpractice actions. In Pennsylvania, informed consent claims sound in “offensive touching” without permission and constitute a battery. Allegations of negligence sound in a breach of the standard of care. As a practical matter, information relating to informed consent can have an important impact on a jury in a medical negligence case. First, a detailed written consent shows that the doctor properly planned the procedure. Second, the discussion of a surgical procedure, including its risks, serves as a powerful reminder that complications occur in medicine, even when professionals skillfully and properly perform a complex procedure. Third, the information helps a jury understand and accept a complication, especially when it has been explained to, and accepted by, the patient. With the stroke of a pen, the potential impact of an informed consent defense has been undercut by the Supreme Court of Pennsylvania.

Recently, the Supreme Court held in Maria and Robert Brady v. William Urbas, D.P.M., 2015 Pa. LEXIS 655 (Pa. Mar. 25, 2015), that evidence that the patient consented to the surgery and its material risks, after being informed of those risks, is generally irrelevant. Worse, the court concluded that it is inadmissible where a plaintiff has only asserted a claim of medical negligence against a doctor.

The underlying case involved a negligence claim brought by a patient against her podiatrist arising out of foot surgery. The issue there was whether the surgeon had met the standard of care in the performance of the procedure. Before trial, the Delaware County Court of Common Pleas denied the plaintiff’s motion in limine to prohibit consent-related evidence, including signed surgical consent forms and testimony that the plaintiff had accepted the surgical risks before undergoing the procedure. During deliberations, the jury asked to review the consent forms in order to know “what [the patient] agreed to.” Ultimately, the jury decided that the defendant physician was not negligent. The plaintiff appealed, claiming that she was prejudiced by the court’s decision to admit the consent evidence, arguing that the jury basically decided that she assumed the risk of her injuries.

The Superior Court concluded that the trial court had abused its discretion, vacated the decision and remanded the case for a new trial. In doing so, the Superior Court adopted the reasoning of the Supreme Court of Virginia regarding the inadmissibility of consent evidence in a medical negligence case. The Virginia court stated:

[A plaintiff’s] awareness of the general risks of surgery is not a defense available to [a defendant physician] against the claim of a deviation from the standard of care. While [the plaintiff] or any other patient may consent to risks, she does not consent to negligence. Knowledge by the trier of fact of informed consent to risk, where lack of [in]formed consent is not an issue, does not help the plaintiff prove negligence. Nor does it help the defendant show he was not negligent. In such a case, the admission of evidence concerning a plaintiff’s consent could only serve to confuse the jury because the jury could conclude…that consent to the surgery was tantamount to consent to the injury which resulted from that surgery. In effect, the jury could conclude that consent amounted to waiver, which is plainly wrong.

Brady v. Urbas, 80 A.3d 480, 484 (Pa.Super. 2013)(quoting Wright v. Kaye, 593 S.E.2d 307, 317 (Va. 2004)). The Superior Court adopted a per se rule of exclusion of evidence of informed consent in medical negligence cases. The court concluded that the evidence was irrelevant, confusing and prejudicial.

Upon further appeal in Brady, the Pennsylvania Supreme Court analyzed the issue. The Supreme Court disagreed with the Superior Court’s adoption of a per se rule. While the court found that evidence of informed consent is generally irrelevant in medical negligence actions, it found that it could be relevant to establish the standard of care in very narrow circumstances, such as those instances where the standard of care has not been nationally defined. Unfortunately, the high court’s opinion provided little guidance as to what would comprise those “narrow circumstances.” In reaching its decision, the Supreme Court stated that, “[a]ssent to treatment does not amount to consent to negligence, regardless of the enumerated risks and complications of which the patient was made aware.” As a result, consent information is now largely inadmissible.

The recent decision in Brady places defendant physicians at a disadvantage at trial. Evidence of informed consent can no longer be presented where there is no informed consent count in the case—the majority of medical negligence cases. Therefore, moving forward, the best approach is to perform an early assessment in cases in which both informed consent and negligence claims are asserted:

• Is there a written consent form? Is the consent form specific and clear?
• Did the physician explain the material risks and potential complications to the patient in detail, including the one(s) the patient post-operatively developed?
• Is the conversation documented in the records?
• Did anyone else witness the informed consent conversation?
• Is the defendant doctor willing to testify regarding the informed consent?

If you believe the informed consent information would be significant and helpful to your client at trial, and you are likely to win at trial on the issue, it may be advantageous to leave the informed consent count in the case by making the strategic choice to not seek its dismissal through preliminary objections, a motion for partial summary judgment, motion in limine, etc. If the informed consent claim is still in the case at the time of trial, the consent information will then be admissible and may be introduced to the jury. Similarly, if you can show that there is a significant dispute between experts on the standard of care, regarding whether the occurrence constituted a known and accepted risk that can occur in the absence of negligence, and your written consent also supports that, you should move in limine to obtain a ruling on the issue before trial. A post-operative complication fully explained pre-operatively by a surgeon to a patient may be more easily accepted by a jury in its deliberations.

*Katharine is an associate in our Philadelphia, Pennsylvania office. She can be reached at 215.575.2893 or kckoob@mdwcg.com.

_{Defense Digest, Vol. 21, No. 2, June 2015}

_{Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2015 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}