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

Last Updated: Dec 10, 2020

gavel-stethoscope-blueOn 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 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.

In Mitchell v. Shikora, the Pa. 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.

PAMED Advocacy

On Oct. 16, 2020, the Pennsylvania Medical Society (PAMED) joined the American Medical Association (AMA) in filing an amicus brief in the Kirksey case. This brief contended that the Mitchell case was correctly decided and there is no need to revisit the holding now.  Specifically, PAMED and the AMA believe that there was no need for the Supreme Court to revisit the Mitchell ruling in a case where there was no Mitchell-related question presented and the lower court’s refusal to issue an assumption of the risk instruction (the only request made) was correct. The amicus brief also argued that limiting instructions are not required by the Mitchell ruling, but whether to include such instructions are left to the discretion of trial courts. PAMED thanks the AMA for its assistance. View a copy of the amicus brief here.

Pa. Supreme Court Decision

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.

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

The AMA’s summary of the case can be accessed here.

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