Pa. Supreme Court Rules Risk and Complication Evidence May Be Presented at Trial

Last Updated: Jun 19, 2019

EvidenceWith its decision in the case of Mitchell v. Shikora et al, the Pennsylvania Supreme Court has ruled that evidence of the known risks and complications associated with a surgical procedure may be presented in defense of a medical liability claim.  

The case of  Mitchell v. Shikora stems from injuries that the plaintiff, Ms. Mitchell, suffered while undergoing a hysterectomy. Despite Ms. Mitchell’s objections, evidence of the risks and complications associated with hysterectomies was presented at trial. Ms. Mitchell claimed this evidence was unfairly prejudicial and should have been excluded as irrelevant to the underlying question of negligence.   

Background of the Case 

In May 2012, Dr. Shikora performed a hysterectomy on Ms. Mitchell at Magee Women’s Hospital of UPMC. During the procedure, Dr. Shikora severed Ms. Mitchell’s bowel.  

Ms. Mitchell subsequently filed a medical liability action against Dr. Shikora, Dr. Shikora’s practice group, and Magee Women’s Hospital. Ms. Mitchell claimed Dr. Shikora had breached his duty of care by failing to identify her bowel prior to cutting it. Dr. Shikora countered that Ms. Mitchell’s injury was a known risk of surgery, not an indication that negligence occurred.  

The case proceeded to a jury trial. During the trial, Ms. Mitchell sought to exclude all consent-related evidence and all evidence pertaining to the known risks and complications of hysterectomies. Since Ms. Mitchell did not raise any consent-related claims in her suit, the trial court excluded all evidence regarding Ms. Mitchell’s consent to undergo a hysterectomy. The trial court, however, allowed evidence regarding the known risks and complications of hysterectomies to be presented to the jury.  

Following a jury verdict in favor of the Defendants, Ms. Mitchell filed a motion seeking a new trial excluding the risk and complications evidence. The trial court denied Ms. Mitchell’s motion. 

Ms. Mitchell subsequently appealed to the Pennsylvania Superior Court. Ms. Mitchell claimed that the trial court had erred in allowing the Defendants to present evidence on the risks and complications of a surgical procedure in a medical liability case that asserted only physician negligence and not any consent-related claims. Evidence of a procedure’s known risks, Ms. Mitchell argued, is irrelevant as to the question of negligence. Ms. Mitchell also argued that the risk and complications evidence misled the jury by inferring that her injuries were the result of surgical complication and not medical negligence. 

The Superior Court reversed the judgment of the trial court and ruled that the risk and complication evidence was irrelevant to the issue of whether Dr. Shikora’s treatment of Ms. Mitchell met the applicable standard of care. This evidence, the Superior Court held, was inadmissible and a new trial without admission of risk evidence is required.  

In rendering this decision, the Superior Court relied heavily on the Pennsylvania Supreme Court’s 2015 holding in the case of Brady v. Urbas. In Brady, the Supreme Court held that evidence that a patient affirmatively consented to treatment after being informed of the risks of that treatment is generally irrelevant to a medical liability suit. Such evidence, however, may be admitted under limited circumstances if it is relevant to establishing an applicable standard of care. In a medical liability trial where only negligence is asserted and not lack of informed consent, the Brady decision holds, evidence that a patient agreed to go forward with a procedure in spite of the risks of which they were informed is irrelevant and should be excluded.  

Applying the Brady rationale to the circumstances of Ms. Mitchell’s case, the Superior Court reasoned that although evidence of a surgical procedure’s risks and complications may be introduced to establish the relevant standard of care, determination of whether such evidence should be admissible is to be conducted on a case-by-case basis. The evidence in the instant case, the Superior Court opined, was irrelevant in determining whether Dr. Shikora acted within the applicable standard of care. The Superior Court further reasoned that the fact that one of the risks and complications of a hysterectomy was the injury suffered by Ms. Mitchell does not make it more or less likely that Dr. Shikora was not negligent. 

Additionally, the Superior Court also theorized that risks and complications evidence could be misleading and confusing to the jury. Noting that this evidence was central to Dr. Shikora’s defense, the Superior Court opined that risks and complications evidence could lead jurors to believe the plaintiff’s injuries were simply the result of surgical complication and lose sight of the ultimate issue of whether the defendant’s actions confirmed to the governing standard of care.   

Supreme Court Maintains Risk & Complication Evidence is Admissible  

Following the Superior Court’s decision in favor of Ms. Mitchell, the Defendants appealed to the Pa. Supreme Court. The Supreme Court granted the Defendant’s appeal and agreed to hear the case. However, the Supreme Court considered the Defendant’s appeal only in regard to one issue: 

  • Whether the Superior Court’s holding directly conflicts with the Pennsylvania Supreme Court’s holdings in Brady v. Urbas, which permits evidence of general risks and complications in a medical liability claim? 

The Pa. Supreme Court issued its decision on June 18, 2019. Justice Todd authored the majority opinion with Chief Justice Saylor, Justice Baer, and Justice Mundy joining.

Justice Wecht filed a concurring opinion. While Justice Donohue filed a concurring and dissenting opinion in which Justice Dougherty joined.

Holding that evidence of a procedure’s known risks and complications may be admissible if it assists a jury in determining both the standard of care and whether the physician’s conduct deviated from this standard, the Supreme Court upheld the precedent established by Brady v. Urbas. In the instant case, after careful examination, the Supreme Court found that the evidence concerning the possible risks of hysterectomies was relevant to establishing the proper standard of care and whether Dr. Shikora’s conduct fell below this standard.

Although evidence regarding risks and complications may lead a jury to conclude that an injury was merely a risk of surgery rather than a result of negligence; it is the duty of trial judges, the Court opined, to ensure, through instruction and comment, that juries understand the proper role of such evidence at trial.

In reaching this conclusion, the Court reasoned that without the admission of such risk evidence where appropriate, a jury may be deprived of information that a certain injury can occur absent negligence and would thus be mistakenly encouraged to infer that a physician is a guarantor of a particular outcome.  

PAMED Advocacy

In January of 2018, the Pennsylvania Medical Society (PAMED) — with support from the American Medical Association (AMA) — filed an amicus brief in support of allowing general risks and complications evidence in medical liability cases. 

The brief argued that the Superior Court had misapplied the Brady holding and its decision should be reversed. Any decision affirming the Superior Court’s decision would: fail to acknowledge the importance of considering procedural risks and complications in establishing the standard of care (independent of what is communicated to the patient in obtaining informed consent), result in strict liability for physicians (i.e., physicians will be held liable for injuries regardless of whether negligence is involved), and  result in an increase in the number of medical liability cases filed against physicians.  

PAMED thanks the AMA for its support.  

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