Mitchell v. Shikora, 209 A.3d 307 (Pa. 2019)

Pennsylvania Supreme Court rules that evidence of the risks and complications of surgery is admissible at trial.

In this recent decision by the Pennsylvania Supreme Court, it was ruled that evidence of the risks and complications of a surgery may be admissible at trial. The care at issue involved a laparoscopic hysterectomy, which resulted in a cut in the patient’s colon. Later the plaintiff filed suit, claiming that the defendant breached the standard of care by failing to identify her colon before making the initial incision into her abdomen. The plaintiff did not plead a claim for battery or lack of informed consent. Prior to trial, the plaintiff filed a motion in limine to preclude any evidence of her informed consent regarding the risks of the procedure, which included perforation of the colon. The trial court granted this motion in part, stating such evidence was irrelevant as there was no informed consent claim. However, the defendants were permitted to show evidence as to whether the perforation was a known risk of the procedure as such evidence could show that an outcome may have been unavoidable. On appeal, the Superior Court held that the lower court erred in allowing any evidence of the known risks and complications.

The Superior Court’s decision was reversed. The Supreme Court began its opinion by noting that “the idea that complications may arise through no negligence of a physician is so ingrained in our jurisprudence that it is often included as part of the instructions to the jury.” Ultimately, it is for the jury to determine whether a patient's injury is the result of negligence. The court found that, without the admission of testimony of known risks and complications, 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. While it was recognized that this determination allows for the potential that a jury might mistakenly conclude that an injury was merely a risk or complication of a surgery, rather than as a result of negligence, it was held that the significant consequences of a prohibition on such evidence tip the scales in favor of admissibility. 


Case Law Alerts, 4th Quarter, October 2019

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