Pennsylvania Supreme Court Agrees to Hear Case Involving Admissibility of “Risks and Complications” Evidence

The Supreme Court recently granted review of a case that should be of great interest to all physicians. In Mitchell v. Shikora, the Supreme Court agreed to decide the issue of whether, and to what extent, evidence of general “risks and complications” of surgeries and procedures may be introduced at trial in a medical liability case. Such evidence often is offered to explain that complications can occur even without negligence and that the mere occurrence of a complication during surgery or a procedure does not mean that a breach of the standard of care occurred.

Mitchell involved claims arising from a hysterectomy that Dr. Shikora, an obstetrical and gynecological surgeon, performed on a patient at Magee Women’s Hospital. The patient’s bowel was severed during the procedure. The patient claimed that Dr. Shikora should have identified her bowel before cutting it, and that, in failing to do so, Dr. Shikora breached his duty of care. Dr. Shikora, by contrast, argued that patient’s injury was a complication, not an indication that negligence occurred.

Before trial, Plaintiff filed a motion to prevent Defendants from explaining to the jury how bowel perforation was a risk or complication of a hysterectomy. The trial court denied the motion and permitted the evidence. After the jury returned a defense verdict, the Plaintiff appealed.

On appeal, the Superior Court reversed and granted a new trial. Specifically, the Superior Court held that Defendants’ evidence regarding “risks and complications” was irrelevant; moreover, the Court held that its introduction violated an earlier Supreme Court decision (Brady v. Urbas, 111 A.3d 1155 (Pa. 2015)), which precluded evidence of informed consent in certain negligence cases. The Superior Court also found that evidence regarding “risks and complications,” if permitted, would prejudice the Plaintiff.

Defendants argued that introduction of “risks and complications” evidence did not violate Brady because Brady involved the admissibility of informed consent forms. The Brady Court ultimately held that such decisions must be made on a case-by-case basis because such forms may be relevant in some cases, but not others, and did not address the issue of “risks and complications.”

The Mitchell Defendants, and the various organizations who filed amicus (friend-of-the-court) briefs supporting Defendants’ position, argued that the occurrence of a complication alone does not establish negligence. They also argued that the jury should be permitted to hear evidence of risks and complications and that, simply because evidence of risk of complications is relevant to informed consent does not make it irrelevant to the standard of care. For these reasons, Defendants and amici argued that the Superior Court’s decision should be reversed by the Supreme Court.

Defendants and amici also explained the danger that may result if the Superior Court’s decision is permitted to stand. If the Superior Court’s decision is permitted to stand, they argued, physicians would be subject to a strict liability standard, would become de facto guarantors of patient safety and would be potentially liable for any harm – even harm caused by a complication and not by negligence. Defendants and amici also pointed out how the Superior Court’s decision will undoubtedly affect the practice of medicine overall by making physicians less likely to perform high-risk procedures. Finally, Defendants argued, if physicians can be held liable for all harm sustained by a patient simply because the surgery or procedure resulted in complications, malpractice rates will increase – to the detriment of the physicians and the general public.

Thus, Defendants and amici urged the Supreme Court to reject Plaintiff’s approach and refuse to allow a per se rule (i.e., precluding evidence of risks and complications) to dramatically change the way in which medical malpractice cases are tried.

The Pennsylvania Medical Society retained Lamb McErlane PC attorneys Maureen McBride and James C. Sargent to represent it in filing an Amicus Curiae brief in the case.

The Mitchell case has been briefed and likely will be argued this summer. A decision from the Supreme Court is expected by the end of 2018 or early 2019.

Maureen Murphy McBride is co-chair of Lamb McErlane’s Appellate Department and is a member of Litigation Department and the Firm’s Executive Committee. She concentrates her practice on appellate law and litigation in state and federal courts., 610-701-4410.