***Please be advised that our firm is committed to meeting your legal needs while the Coronavirus/COVID-19 pandemic persists. We have taken all measures recommended by the CDC to ensure the safety of our employees and those with whom we may have contact. Our attorneys and staff all have the capabilities to work from home and are encouraged to do so to the extent possible. Nevertheless, you can continue to contact us as usual by phone or email. Our intent is to maintain full law firm operations even if all of our lawyers and staff work from home. Thank you.***

In the finest tradition of the legal profession.

Evidence that Patient Consented to Treatment After Being Informed of the Risks of that Treatment is Irrelevant in a Medical Negligence Case

On Behalf of | Apr 2, 2015 | Firm News, Medical Malpractice Litigation

In March 2015, the Pennsylvania Supreme Court issued an opinion and order in the case of Brady v. Urbas, No. 74 MAP 2014. In that case, the plaintiff in that case had undergone four unsuccessful podiatric surgeries over a two year period to correct a “hammer toe” condition.

Her complaint did not assert a count for lack of informed consent. However, she averred that she could not reasonably have discovered the harm she had suffered until after the fourth surgery because the defendant podiatrist’s “advice, assurances and recommendations [had] lulled [her] into a false sense of security and concealed the true nature of [her] condition.”

The plaintiff filed a motion in limine to exclude any consent-related evidence at trial, including the surgical consent forms she had signed before each procedure. She argued that the probative value of such evidence was outweighed by the danger of unfair prejudice, confusion of the issue or misleading the jury.

The defendant podiatrist responded that the risks and complications of surgery would be relevant to the plaintiff’s credibility as a witness and to her state of mind at the time of the surgeries, and would not be used to prove or disprove informed consent.

The trial court denied the motion in limine. Significantly, during its deliberations, the jurors asked to review the consent forms, stating that they needed to know “what the plaintiff had agreed to.” The jury ultimately returned a defense verdict, and the plaintiff appealed. The Superior Court reversed, Brady, 80 A.3d at 484 (citing Wright v. Kaye, 539 S.E.2d 307, 317 (Va. 2014), and accepted a “bright line” rule that evidence of informed consent is never admissible in a medical malpractice case where the plaintiff has not pleaded a lack of such consent.

The Supreme Court granted the defendant leave to appeal the Superior Court’s “bright line” ruling. While affirming of the Superior Court’s result, the Supreme Court recognized that situations might arise where knowledge of some aspects of the consent process could be relevant, such as where “the standard of care requires that the doctor discuss certain risks with the patient.” (Footnote 5 to the opinion enumerates several other possible scenaria where such information might be relevant.)

Accordingly, the court “decline[d] to endorse the Superior Court’s broad pronouncement to the degree it may be construed to hold that all aspects of informed consent information are always ‘irrelevant in a malpractice case.’” (citing Brady, 80 A.3d at 484) Nonetheless, while declining to adopt a “bright line” rule, the Supreme Court concurred with the Superior Court’s reasoning as a general proposition, holding: … the fact that a patient may have agreed to a procedure in light of the known risks does not make it more or less probable that the physician was negligent in either considering the patient an appropriate candidate for the operation or in performing it in the post-consent timeframe. Put differently, there is no assumption of the risk defense available to a defendant physician which would vitiate his duty to provide treatment according to the ordinary standard of care.

For questions about TRC’s defense of physicians and other healthcare providers, please contact David R. Johnson at (412) 316-8662 or [email protected].

Important NoticeThis information is intended for general guidance only, and should not be used as a substitute for specific legal advice.  For specific legal advice applicable to your situation, you should consult an attorney of your choice.  Although believed to be accurate when written, no guarantee of completeness or accuracy to your particular circumstances should be implied.  Laws, regulations, and court decisions in this area change frequently, and you should consult the attorney of your choice for up-to-date information.