September 28, 2015

Informed Consent Deemed Irrelevant in Certain Cases

In Brady v. Urbas, 111 A.3d 1155 (Pa. 2015), the Pennsylvania Supreme Court affirmed the Superior Court’s decision to vacate judgment in favor of the defendant physician, Dr. Urbas, and remand for a new trial. The underlying case arose from a series of four surgeries performed by Dr. Urbas on the patient’s right foot between March 2008 and January 2010. According to the testimony at trial, prior to each surgery Dr. Urbas explained the risks of the procedure, told the patient that complications could occur as a result of the surgery, and had the patient sign a consent form acknowledging her awareness of the potential risks and complications.

In August 2010, the patient consulted a second podiatrist, who performed surgery that substantially corrected many of the patient’s complaints. The patient initiated a lawsuit against Dr. Urbas in December 2010, alleging that he had negligently treated her right toe during the latter three surgeries performed. The complaint did not include a claim arising from lack of informed consent.

Prior to trial, the patient filed a Motion in Limine to preclude any consent-related evidence at the time of trial, including introduction of the consent forms she signed prior to each surgery, arguing that such evidence was irrelevant as to whether Dr. Urbas performed the procedures within the applicable standard of care. Dr. Urbas argued that evidence as to the patient’s consent to the potential risks and complications of each procedure was relevant to her credibility and her state of mind at the time of the surgeries. The trial court denied the patient’s motion and permitted evidence regarding consent.

During the trial, experts for both sides testified that the complications the patient experienced were common and the patient’s consent to the procedures was discussed at multiple times throughout the trial. During their deliberations, the jury requested to review the consent forms (which they were provided), and then rendered a verdict in favor of Dr. Urbas.

The patient appealed the verdict on the basis that the trial court abused its discretion in permitting the evidence regarding consent. In its 1925(a) statement, the trial court indicated that the probative value of the consent forms outweighed its prejudicial effect, and specifically noted that it was clarified before the jury on multiple occasions that the patient did not consent to negligently performed surgery.

The Superior Court reversed, adopting rationale from the Supreme Court of Virginia which held that “[the plaintiff’s] awareness of the general risks of a surgery is not a defense available to [a defendant physician] against the claim of a deviation from the standard of care….[k]knowledge by the trier of fact of informed consent to risk, where lack of [in]formed consent is not an issue, does not help the plaintiff prove negligence.”

The Supreme Court granted certiorari, and in an opinion by Chief Justice Saylor affirmed the decision of the Superior Court in part. The Supreme Court noted that generally, some information as to informed consent could be relevant to the question of negligence if the standard of care required that a physician discuss certain risks with the patient, and that in some cases, evidence regarding the risks of surgical procedures may be relevant in establishing standard of care. However, the Supreme Court specifically noted that “there is no assumption-of-the-risk defense available to a defendant physician that would vitiate his duty to provide treatment according to the ordinary standard of care. The patient’s actual, affirmative consent, therefore, is irrelevant to the question of negligence.” The Supreme Court further held:

That being the case, in a trial on a malpractice complaint that only asserts negligence, and not lack of informed consent, evidence that a patient agreed to go forward with the operation in spite of the risks of which she was informed is irrelevant and should be excluded.

What It Means to You

This holding is problematic as it severely limits potential cross examination of a plaintiff, particularly as to cases arising from the allegedly negligent performance of a surgery. The holding of this case has effectively not only precluded counsel from, for example, cross examining patients as to their awareness of more severe risks to which they consented prior to undergoing a procedure (such as death) in cases with relatively minor surgical injuries, but also has effectively precluded defendants from discussing routine complications that patients are told can occur even with the most perfectly performed procedure.

The court did, through dicta, permit some leeway into discussing complications, acknowledging that consent to certain complications may be relevant to determining negligence in certain situations, though the court did not elaborate as to when such evidence may be relevant. Thus, consideration will have to be given in advance of trial as to how best to argue the admissibility of consent to risks of surgery absent a claim for informed consent.