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UPDATE: Supreme Court Rejects Bright Line Ban of Informed Consent Evidence

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The Pennsylvania Supreme Court recently declined to follow the Superior Court’s November 2013 prescription for a blanket prohibition of evidence of informed consent in medical malpractice cases.  In doing so, however, the Supreme Court affirmed the long held finding that a patient’s consent to a medical procedure is immaterial as to the question of negligence and affirmed the Superior Court’s grant for a new trial in Brady v. Urbas, D.P.M

As reported previously, the original case began when a woman sued her podiatrist in 2010 for injuries related to a series of foot surgeries that she claimed were negligently performed.  Prior to trial, the plaintiff filed a motion in limine to preclude the defendant podiatrist from introducing any evidence of the informed consent forms the patient signed, arguing that informed consent was not a defense to negligence and was irrelevant as to whether the podiatrist breached the standard of care.  The motion was denied.  Consequently, the podiatrist’s counsel referred to the consent form during trial.  The jury returned a defense verdict and the plaintiff filed an appeal.

Then, on November 12, 2013, the Pennsylvania Superior Court held that the trial court abused its discretion by allowing references to the patient’s consent and granted a new trial.  In doing so, the Superior Court adopted a complete ban on evidence of informed consent on the basis that such evidence may lead a jury to conflate the two separate concepts of accepting the risks of surgery and negligence occurring during a surgery.  On July 26, 2014, the Supreme Court granted the podiatrist’s petition.

The podiatrist argued before the Supreme Court that the consent-related conversations he held with the plaintiff helped define the standard of care and the expected outcomes.  The podiatrist also criticized the Superior Court’s adoption of a per se rule and its failure to balance the consent discussion’s relevance under Rule 403 of the Pennsylvania Rules of Evidence.  

In writing for the majority, Chief Justice Thomas G. Saylor stated that evidence of informed consent might be relevant if the standard of care requires a physician to discuss the risks of a procedure with a patient, as well as to establish that standard.  Chief Justice Saylor also reiterated that the evidentiary standard for evidence is low as evidence is relevant if it has “any tendency to make a fact more or less probable than it would be would be without the evidence.”  Accordingly, the Supreme Court declined to endorse the Superior Court’s blanket prohibition of such evidence to the extent such a ban would be construed to mean that all aspects of informed consent were always irrelevant in medical malpractice cases. 

Despite that holding, however, Justice Saylor noted previous findings that a patient’s consent to a procedure does not equate to the probability that a physician was negligent when either considering whether the patient was an appropriate candidate or during the surgery itself.   “Put differently, there is no assumption-of-the-risk defense available to a defendant physician which 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 defense.”  Further, the Supreme Court found that, in cases were a plaintiff does not allege failure to obtain informed consent, evidence that the patient consented to a medical procedure is irrelevant.  Thus, while avoiding a blanket prohibition, the Supreme Court held that informed consent is generally irrelevant in medical malpractice cases except in narrow instances.

The Supreme Court also discussed the danger created when a jury wrongfully believes that a patient’s consent to a procedure equated to consenting to any injuries that may result from that procedure.  Specifically with this case, the Supreme Court noted the possibility that the jury may have improperly interpreted the plaintiff’s trial testimony about signing the consent forms.  The defense included multiple references to the consent during summation, and shortly after the jury returned a verdict in favor of the podiatrist.  The Supreme Court therefore cautioned that the jury’s verdict mistakenly interpreted the evidence of the plaintiff’s consent.

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