October 10th, 2018

Admissibility of Informed Consent Evidence

An issue that often arises in medical malpractice cases is the admissibility of evidence related to a plaintiff’s informed consent when there is no specific informed consent claim in the Complaint. The Pennsylvania Supreme Court, in Mitchell v. Shikora, D.O.,  recently indicated that it would weigh in on this issue when it granted the Petition for Allowance of Appeal by the defendant-surgeon on the following question:  “Whether the Superior Court’s holding directly conflicts with this Honorable Court’s holdings in Brady v. Urbas, 631 Pa. 329, 111 A.3d 1155 (2015), which permits evidence of general risks and complications in a medical negligence claim?”

By way of background, in Brady, the Pennsylvania Supreme Court rejected a bright-line rule excluding informed-consent information in a medical negligence case when it held: “Accordingly, we decline to endorse the Superior Court’s broad pronouncement to the degree that it may be construed to hold that all aspects of informed-consent information are always ‘irrelevant in a medical malpractice case.’”

The Brady court stated:

Evidence about the risks of surgical procedures, in the form of either testimony or a list of such risks as they appear on an informed-consent sheet, may also be relevant in establishing the standard of care.  Id. at 1161-62 (citing Hayes v. Camel, 927 A.2d 880, 890 (Conn. 2007) (acknowledging the potential relevance of  such enumerated risks in establishing the standard of care and stating that evidence of the same may be introduced so long as it is not admitted in the context of communications with the plaintiff).  In this regard, we note that the threshold for relevance is low due to the liberal “any tendency” prerequisite.  Pa.R.E. 401 (emphasis added).

Subsequent to the Brady decision, the Superior Court in Mitchell considered whether evidence related to the general risks and complications of a laparoscopic hysterectomy was admissible at trial when the plaintiff did not raise an informed consent claim against the defendant-surgeon.  The Superior Court held that the evidence was inadmissible, reasoning “such evidence was irrelevant in determining whether [the defendant-surgeon] acted within the applicable standard of care.”  In Mitchell, the plaintiff had suffered a bowel perforation, which was one of the recognized risks and complications of the laparoscopic hysterectomy.

The fact that the Supreme Court granted the defendant-surgeon’s petition on the one issue enumerated above indicates that it may disagree with the Superior Court’s interpretation of Brady that precludes informed consent evidence in all cases where informed consent is not alleged. For those of us defending hospitals and physicians in medical malpractice cases, this appeal could assist in allowing general risks and complications evidence as relevant to the standard of care. Stay tuned!


Attorney Jennifer L. Weed supports the firm’s Medical Malpractice Defense Group, representing hospitals and health networks as well as individual physicians in claims regarding their care.