Supreme Court Dismisses Appeal Challenging How Risk and Complication Evidence May Be Presented at Trial

Last Updated: Dec 11, 2020

On Dec. 10, 2020, the Pennsylvania Supreme Court dismissed an appeal by the plaintiffs in the case of Kirksey v. Children’s Hospital of Pittsburgh et al.  This case, in which the Pennsylvania Medical Society (PAMED) and the American Medical Association (AMA) filed an amicus brief, involved whether the trial court erred in failing to provide a limiting instruction in a case where risk and complication evidence was presented.

A “limiting instruction” is an instruction to a jury that informs jurors not to use a particular piece of evidence to draw a certain inference; however, jurors may use the evidence in other ways. The plaintiffs never requested a specific limiting instruction when risk and complication evidence was admitted at trial. The plaintiffs instead asked the trial court to instruct the jury on the “assumption of the risk” doctrine. The trial court concluded such instruction was unwarranted as the defendants had not raised any assumption of risk claims. The plaintiffs only raised their limiting instruction claims regarding the Mitchell precedent upon appeal.

The Supreme Court dismissed the appeal as improvidently granted. This dismissal means the Court recognized that the issue it accepted for review (regarding the propriety of the jury charge) had not properly been preserved for appeal. Thus, the defense verdict in this case stands and means that there will not be any erosion of the Court’s Mitchell decision any time soon. In Mitchell v. Shikora, the Supreme Court held that evidence of known risks and complications may be admissible at trials for medical professional liability claims. The defendants in Mitchell argued that risks and complications evidence is relevant and necessary to educate jurors about the risks of surgery and, in particular, about the fact that not all adverse surgical outcomes are caused by negligent conduct. Based upon this reasoning, the Supreme Court concluded that without the admission of testimony of known risks or complications, where appropriate, a jury may be deprived of information that a certain injury can occur absent negligence, and, thus, would be encouraged to infer that a physician is a guarantor of a particular outcome.

You can read the Court’s order and concurring opinion.

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