LANETTE MITCHELL v. EVAN SHIKORA, D.O., UNIVERSITY OF PITTSBURGH PHYSICIANS D/B/A WOMANCARE ASSOCIATES, MAGEE WOMENS HOSPITAL OF UPMC
No. 55 WAP 2017
IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT
JUNE 18, 2019
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
[J-77-2018]; ARGUED: October 23, 2018
JUSTICE TODD
In this appeal by allowance, we consider the admissibility of evidence regarding the risks and complications of a surgical procedure in a medical negligence case. For the reasons that follow, and consistent with our recent decision in Brady v. Urbas, 111 A.3d 1155 (Pa. 2015), we find that
In May 2016, Appellant, Dr. Evan Shikora, was to perform a laparoscopic hysterectomy on Appellee Lanette Mitchell. Dr. Shikora, assisted by resident physician, Dr. Karyn Hansen, began the operation by making an incision into Mitchell‘s abdomen; however, while they were opening the sheath of the peritoneum,1 the doctors detected fecal odor.2 Dr. Shikora realized that Mitchell‘s colon had been severely cut; thus, he abandoned the hysterectomy and consulted with a general surgeon, Dr. Anita Courcoulas, who performed an emergency loop ileostomy,3 which ultimately was successful in repairing the bowel. Mitchell, however, was required to wear an external ileostomy pouch for a short period.
In December 2016, Mitchell filed the instant medical negligence action against Dr. Shikora, University of Pittsburgh Physicians d/b/a WomanCare Associates, and Magee Women‘s Hospital of UPMC (collectively, “Appellants“). Mitchell alleged Dr. Shikora breached his duty of care by, inter alia, “failing to take reasonable precautions to prevent [Mitchell] from suffering complications, injuries and/or damages in connection with the surgery.” Complaint, 12/6/13, ¶ 25(b). Mitchell‘s theory was that Dr. Shikora‘s failure to identify her colon before making an incision into her abdomen constituted a breach of the applicable medical standard of care. Mitchell did not plead a claim for battery or lack of informed consent.
Prior to trial, Mitchell filed a motion in limine to exclude evidence of her informed consent regarding the risks of the procedure, which included perforation of the colon, as well as evidence of the risks themselves, as irrelevant, unfairly prejudicial, or confusing. Following a hearing, the trial court granted Mitchell‘s motion with respect to evidence of her informed consent regarding the risks of the procedure, as she had not raised such a claim. However, with respect to whether a bowel injury was a known risk or complication of the surgery, i.e., with respect to the allowance of evidence of the risks or complications themselves, the trial court denied the motion to preclude such evidence.
The parties proceeded to a jury trial before the Honorable Paul F. Lutty, Jr. Mitchell offered testimony from a medical expert, Dr. Vadim Morozov, who explained the anatomy of the abdomen, testified regarding performing a proper and safe laparoscopic hysterectomy, which he stated included identification of the body structure before making an incision, and provided his opinion that cutting into the colon without proper identification of the anatomy below the incision breached the relevant standard of care. N.T., 2/1/16, at 183-85, 202-04, 245-46. Mitchell also called Dr. Hansen, and testified herself. Mitchell was not questioned regarding her pre-operation
For Appellants, Dr. Shikora testified, acknowledging that injury to the bowel is a recognized complication of surgery and that the riskiest part of the procedure is entry into the abdominal cavity, “[b]ecause it is blind” and the surgeon “can‘t see beyond the skin and the layers below it.” N.T., 2/4/16, at 593. Appellants also provided the testimony of an expert, Dr. Charles Ascher-Walsh, who offered that Dr. Shikora and Dr. Hansen complied with the standard of care applicable to laparoscopic hysterectomies; he testified that, in making the initial incision, a physician often cannot see through the tissue, and, thus, the surgeon does not know what is behind the peritoneum, and that this is when complications may occur, which can be unavoidable and can occur absent surgical negligence. N.T., 2/5/16, at 694-95, 697, 701-02. Thus, Appellants introduced evidence of the risks of the procedure, including perforation of the colon, which may occur with a properly performed laparoscopic hysterectomy. Furthermore, according to Appellants, Mitchell‘s colon was in an unanticipated location in the middle of her abdomen, which led to it being cut. Following closing arguments, the jury returned a verdict for Appellants.
Mitchell filed a post-trial motion for a new trial on the ground that the trial court erred in denying her motion in limine in part. The trial court denied the motion, and Mitchell appealed. In its ensuing
In a unanimous, published opinion, authored by the Honorable John L. Musmanno, a three-judge panel of the Superior Court reversed and remanded for a new trial. Mitchell v. Shikora, 161 A.3d 970 (Pa. Super. 2017). After reciting the applicable abuse-of-discretion standard of review, the court looked to the relevant law regarding the admission of known risks and complications evidence as set forth in our decision in Brady. The Superior Court quoted operative language from Brady, which considered whether informed-consent evidence was probative of the appropriate standard of care or the breach thereof. Recognizing that the Brady Court rejected the notion that informed-consent information is always irrelevant, the court nevertheless determined that, “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.” Id. at 973 (quoting Brady, 111 A.3d at 1162-63).
After surveying the expert testimony offered by both parties, the court found that the trial court erred in denying Mitchell‘s motion in limine with respect to evidence of the risks and complications of the procedure, reasoning that such evidence was irrelevant, misleading, and confusing:
Here, while evidence of risks and complications of a surgical procedure may be admissible to establish the relevant standard of care, in this case, such evidence
was irrelevant in determining whether [Appellants], specifically Dr. Shikora, acted within the applicable standard of care. . . . The fact that one of the risks and complications of the laparoscopic hysterectomy, i.e., the perforation of the bowel, was the injury suffered by Mitchell does not make it more or less probable that Dr. Shikora conformed to the proper standard of care for a laparoscopic hysterectomy and was negligent. . . . Moreover, the evidence would tend to mislead and/or confuse the jury by leading it to believe that [Mitchell‘s] injuries were simply the result of the risks and complications of the surgery.
Id. at 975 (citations omitted).
The court further found that the trial court‘s error resulted in prejudice, observing that the evidence was central to Appellants’ theory of the case, as demonstrated by their opening and closing statements. Thus, the court concluded that the risks and complications evidence was irrelevant to the issue of whether Appellants’ treatment of Mitchell met the appropriate standard of care, and remanded the matter for a new trial.
In response to Appellant‘s petition, we granted allocatur limited to the issue, as framed by Appellants, of “[w]hether the Superior Court‘s holding directly conflicts with this Honorable Court‘s holdings in Brady v. Urbas, 111 A.3d 1155 (Pa. 2015), which permits evidence of general risks and complications in a medical negligence claim?” Mitchell v. Shikora, 174 A.3d 573, 573-74 (Pa. 2017) (order).
Appellants argue that evidence of the risks and complications of a procedure is relevant and admissible in a medical negligence case, as explained in Brady, because it informs the inquiry regarding the standard of care and whether it was breached, as well as causation. Specifically, Appellants contend that evidence of the risks and complications is necessary to explain a physician‘s decision-making with respect to his or her actions, which in turn informs the standard of care. According to Appellants, here, the first incision in laparoscopic surgery involves an increased risk of complications as the initial incision is undertaken “blind;” thus, it follows that, if a bowel injury during abdominal entry is a well recognized risk or complication of laparoscopic surgery, it is less likely that the standard of care was breached. Appellants submit that, given that complications may arise even when proper care is provided, evidence of risks and complications must be presented to the jury to allow for a complete picture of the applicable standard of care.
As to causation, Appellants maintain that defendants in a negligence action are entitled to offer evidence as to alternative causes of injury, and, here, it is permissible for a physician to introduce evidence suggesting another cause of the injury, such as routine medical complications. Appellants stress that a physician is neither a warrantor of a cure, nor a guarantor of a result. Thus, Appellants offer that evidence of risks or complications addresses not only whether a physician‘s conduct fell below the standard of care and caused injury, but is relevant to dispel a finding of negligence with respect to an injury which may have occurred despite the exercise of reasonable care. Appellants urge that prohibiting such explanatory evidence would prevent a physician from presenting alternative causes, and, in effect, transform physicians into guarantors of a cure.
Appellants further argue that the Superior Court misunderstood the holding of Brady and erroneously conflated two distinct concepts: evidence of patient consent (which is not admissible in a pure
Mitchell counters that, under Brady, informed-consent evidence is generally inadmissible in medical malpractice cases, and she characterizes evidence of the risks and complications of a procedure as such evidence. Appellee‘s Brief at 17. Mitchell maintains that Appellants overstate their argument by claiming the Superior Court in this matter determined that risks and complications evidence was always inadmissible. Rather, Mitchell asserts that the Superior Court‘s decision is entirely consistent with Brady, as such admissibility decisions are to be made on a case-by-case basis, and, here, the Superior Court determined that risks and complications evidence was not probative of whether Appellants treatment of Mitchell fell below the standard of care. Mitchell adds that the Superior Court properly found that testimony regarding risks and complications would mislead and confuse the jury. According to Mitchell, evidence about complications is not probative of whether her bowel injury occurred in the absence of negligence, as generalized risks and complication studies do not usually indicate what percentage of complications resulted from negligent care. Mitchell presses that a jury should not be allowed to conclude that the occurrence of a known complication demonstrates the absence of negligence in a particular case.
Mitchell also rejects Appellants’ assertion that informing jurors of risks of a
As this case involves the admission of evidence, a brief recitation of the law in this area is helpful. Generally, relevant evidence is admissible and irrelevant evidence is inadmissible. Evidence is relevant if it has “any tendency to make a fact [of consequence] more or less probable than it would be without the evidence.”
Decisions regarding the admissibility of evidence are vested in the sound discretion of the trial court, and, as such, are reviewed for an abuse of discretion. See Commonwealth v. Wright, 78 A.3d 1070, 1086 (Pa. 2013). An abuse of discretion occurs where the trial court “reaches a conclusion that overrides or misapplies the law, or where the judgment exercised is manifestly unreasonable, or is the result of partiality, prejudice, bias, or ill will.” Id. at 1080. To the degree the issue of whether the law has been misapplied involves a purely legal question, it is reviewed de novo. See Hoy v. Angelone, 720 A.2d 745, 750 (Pa. 1998).
In order to establish a prima facie case of malpractice, the plaintiff must establish: (1) a duty owed by the physician to the patient; (2) a breach of that duty; (3) that the breach of duty was the proximate cause of the harm suffered by the patient; and (4) that the damages suffered were a direct result of that harm. See Hightower-Warren v. Silk, 698 A.2d 52, 54 (Pa. 1997). Stated another way, to prevail on a claim of medical negligence, the plaintiff must prove, inter alia, that the defendant‘s treatment fell below the appropriate standard of care — that is, varied from
A plaintiff in a medical negligence matter is required to present an expert witness who will testify, to a reasonable degree of medical certainty, regarding the standard of care (duty); that the acts of the physician deviated from the standard or care (breach); and that such deviation was the proximate cause of the harm suffered. Hightower-Warren, 698 A.2d at 54. Expert testimony in support of the plaintiff‘s claim is an indispensable requirement in establishing a plaintiff‘s right of action, as the treatment and injury typically involved are such that the common knowledge or experience of a layperson is insufficient to form the basis for passing judgment. Collins v. Hand, 246 A.2d 398, 401 (Pa. 1968). We must therefore consider whether risks and complications evidence is probative of any of the above requirements.
Initially, we note that, “a physician is neither a warrantor of a cure nor a guarantor of the result of his treatment.” Collins, 246 A.2d at 400-01;
Furthermore, evidence of an individual‘s consent to undergo surgery is not evidence of consent to a physician acting below the accepted standard of care: “It has long been the law in Pennsylvania that a physician must obtain informed consent from a patient before performing a surgical or operative procedure. . . . The rationale underlying requiring informed consent for a surgical or operative procedure and not requiring informed consent for a non-surgical procedure is that the performance of a surgical procedure upon a patient without his consent constitutes a technical assault or a battery because the patient is typically unconscious and unable to object.” Morgan v. MacPhail, 704 A.2d 617, 619-20 (Pa. 1997). Thus, an action asserting a lack of informed consent is distinct from a claim of medical negligence. That being the case, admitting evidence that a patient is informed of certain risks in a pure negligence action can erroneously suggest to the jury that the patient has consented to negligence. Additionally, such evidence can confuse the jury and cause it to stray from assessing the central question of whether the physician‘s actions conformed to the applicable standard of care.
Our Court addressed these legal principles in our 2015 opinion in Brady, authored by Chief Justice Saylor, and joined
The Superior Court vacated and remanded for a new trial, adopting a per se rule, and reasoning that evidence of informed consent is always irrelevant to the issue of negligence and could suggest to the jury that consent to the surgery was tantamount to consent to the injury which resulted from that surgery, and that, in the alternative, such evidence could mislead the jury by leading it to believe that the plaintiff‘s injuries were simply a risk of the surgeries, regardless of negligent conduct by Dr. Urbas. Dr. Urbas sought, and we granted, review.
On appeal, we held that, although evidence of a patient‘s informed consent to a procedure is generally irrelevant to the issues of standard of care and breach of duty and may confuse the jury, evidence of the risks of the procedure themselves may be relevant and admissible. Specifically, our Court made a distinction between the admission of informed-consent evidence — such as consent forms, or communications between a physician and a patient regarding the purpose, nature, and risks of surgery — and the admission of evidence of the risks and complications of surgery:
To prevail on a claim of medical negligence, the plaintiff must prove that the defendant‘s treatment fell below the appropriate standard of care. (“[M]edical malpractice can be broadly defined as the unwarranted departure from generally accepted standards of medical practice resulting in injury to a patient[.]“). We therefore consider whether informed-consent evidence is probative of that question. In undertaking this inquiry, it is important to recognize that such information is multifaceted: it reflects the doctor‘s awareness of possible complications, the fact that the doctor discussed them with the patient, and the patient‘s decision to go forward with treatment notwithstanding the risks.
Some of this information may be relevant to the question of negligence if, for example, the standard of care requires that the doctor discuss certain risks with the patient. 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. In this regard, we note that the threshold for relevance is low[.] Accordingly, we decline to endorse the Superior Court‘s broad pronouncement to the degree it may be construed to hold that all aspects of informed-consent information are always “irrelevant in a medical malpractice case.”
Still, the fact that a patient may have agreed to a procedure in light of the known risks does not make it more or less probable that the physician was
negligent in either considering the patient an appropriate candidate for the operation or in performing it in the post-consent timeframe. 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 negligence. Moreover, and as the trial court observed, assent to treatment does not amount to consent to negligence, regardless of the enumerated risks and complications of which the patient was made aware. 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. . . . Evidence of the patient‘s consent also tends to confuse the issue because, . . . the jury might reason that the patient‘s consent to the procedure implies consent to the resultant injury, and thereby lose sight of the central question pertaining to whether the defendant‘s actions conformed to the governing standard of care. . . .
Accordingly, we hold that evidence that a patient affirmatively consented to treatment after being informed of the risks of that treatment is generally irrelevant to a cause of action sounding in medical negligence.
Brady, 111 A.3d at 1161-64 (emphasis added) (citations omitted).
As becomes evident from the above quoted passage, our Court in Brady spoke in terms of two discrete categories of evidence: (1) informed-consent evidence; and (2) risks and complications evidence. As to the first category, the Court plainly held that manifestations of a patient‘s actual, affirmative consent to surgery, and the risks thereof, are irrelevant to the question of negligence. Brady, 111 A.3d at 1162. Thus, where a patient‘s action is limited to medical negligence, and not a lack of informed consent, all 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. Id. at 1162-63.
However, the Court contrasted this with other types of evidence, such as evidence of risks and complications. Indeed, the Brady Court specifically rejected the Superior Court‘s per se rule that “all aspects of informed-consent information are always ‘irrelevant in a medical malpractice case.‘” Id. at 1162. Rather, evidence of the risks and complications of a surgical procedure, “in the form of either testimony or a list of such risks as they appear on an informed-consent sheet” could be “relevant in establishing the standard of care.” Id.9
The Superior Court‘s approach in the matter sub judice is inconsistent with our decision in Brady, as it blurred the distinction between informed-consent evidence — showing a patient‘s actual, affirmative consent
The complex nature of the practice of medicine — requiring, in the litigation realm, expert testimony for virtually all aspects of a plaintiff‘s burden to prove negligence, as well as in defense to those allegations — is central to our admissibility inquiry. Determining what constitutes the standard of care is complicated, involving considerations of anatomy and medical procedures, and attention to a procedure‘s risks and benefits. Further, a range of conduct may fall within the standard of care. While evidence that a specific injury is a known risk or complication does not definitively establish or disprove negligence, it is axiomatic that complications may arise even in the absence of negligence. We emphasize that “[t]he art of healing frequently calls for a balancing of risks and dangers to a patient. Consequently, if injury results from the course adopted, where no negligence or fault is present, liability should not be imposed upon the institution or agency actually seeking to assist the patient.” Toogood, 824 A.2d at 1150. As a result, risks and complications evidence may clarify the applicable standard of care, and may be essential to provide, in this area, a complete picture of that standard, as well as whether such standard was breached. Stated another way, risks and complications evidence may assist the jury in determining whether the harm suffered was more or less likely to be the result of negligence. Therefore, it may aid the jury in determining both the standard of care and whether the physician‘s conduct deviated from the standard of care. We recognized as much in Brady. See Brady, 111 A.3d at 1161-62 (“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.“). As such, we hold that evidence of the risks and complications of a procedure may be admissible in a medical negligence case for these purposes.10
The dissent takes a contrary view, first accusing the majority herein of enacting a per se rule that risks and complications evidence is always admissible in medical malpractice cases. See Dissenting Opinion (Donohue, J.). Respectfully, this is not our determination. As noted above, such evidence may be admissible, subject to traditional concerns of relevancy, reliability, and disqualifying considerations such as undue prejudice.
The dissent further claims that evidence of risks and complications is irrelevant in this case, as it does not speak to whether Dr. Shikora acted within the applicable standard of care. Respectfully, the dissent takes too circumscribed a view of such evidence and how it relates to the standard of care or breach thereof. First, the critical inquiry in a medical malpractice action is whether the physician‘s treatment fell below the appropriate standard of care — i.e., was there an unwarranted departure from generally accepted standards of medical practice resulting in injury to the patient. Brady, 111 A.3d at 1161. In attempting to resolve these questions, evidence is freely admitted because, as we discussed, evidence is relevant if it has “any tendency to make a fact [of consequence] more or less probable than it would be without the evidence.”
In support of its position, the dissent makes much of the expert testimony from Appellants’ expert, Dr. Ascher-Walsh, and specifically that he “admitted that the fact that Mitchell suffered a colon injury, which is a known risk of a laparoscopic hysterectomy, provides no insight into whether the surgeons who performed the procedure were negligent and breached the standard of care — the injury could happen as a result of negligence or not,” Dissenting Opinion (Donohue, J.) at 6-7, and that Dr. Ascher-Walsh agreed that the known risks of the surgery did not clarify the applicable standard of care, id. at 9. Making the point again, the dissent further
Q. [Mitchell‘s Counsel] So, in fact, the injury, the bowel injury itself, doesn‘t really tell us much about the standard of care, does it?
A. [Dr. Ascher-Walsh] That‘s correct.
N.T., 2/5/16, at 707.
Based upon the specific question asked of him, Dr. Ascher-Walsh merely stated the obvious: that the exact injury suffered — the cutting of Mitchell‘s bowel — may have resulted from negligence, or not from negligence. This passage was not, as implied by the dissent, a “gotcha” moment on the stand. Rather, risks and complications evidence goes beyond the specific injury at issue and includes the conduct of the physician and circumstances surrounding that conduct, as exemplified by Dr. Ascher-Walsh‘s testimony:
Q. [Appellants’ Counsel] Would you just take it, if you will, from there. Explain to the jury, I‘ll interrupt you if I need to, why you hold that opinion to a reasonable degree of medical certainty?
A. I think that really the only place in this case where one can find fault is in the initial incision into the abdomen, and during that incision is the one time during the surgery — I think you have seen pictures of how narrow a site you are going down — it is the one time in the surgery when you are making an incision into a space where you can‘t really see where you are going.
You know, you are cutting through tissue that occasionally you can see through it, but very often you can‘t see through it at all. Everybody is very different. Most of the time, especially going through a little incision, the more fat, the deeper the longer that incision is. That initial incision, I‘ve done over 8,000 case[s] and every time I make that incision, I hold my breath[] because you never know 100 percent that that is going to be okay. I feel much better once you are inside and seeing, but that initial incision is when you can‘t be sure.
The benefit of doing it that way is that the patient will recover faster, have less pain, sort of both the surgeons and patients are happy to take that risk because it is going to benefit them in the long run; but there is going to be those times where that incision is going to cause a problem like in this case.
N.T., 2/5/16, at 694-95.
Indeed, Dr. Ascher-Walsh did not simply testify that a specific injury is a risk of laparoscopic surgery, but provided a full explanation regarding whether such injury may occur in the absence of negligence and why:
A. [Dr. Ascher-Walsh] Half the time that doesn‘t work, half the time you just have to make sure you are pulling up the thinnest amount of tissue you possibly can after you make that cut and you are hoping that there isn‘t anything on the other side.
Q. [Appellants Counsel] Again, that‘s why the entry in the laparoscopic procedures, sometimes in the terminology they use is it is blind if you will?
A. Correct.
Q. It is not really that it is blind, it is just at that one stage the surgeon
doesn‘t know exactly what is behind the peritoneum. Is that a fair statement? A. That‘s exactly correct.
Q. And furthermore, if a structure were to be behind where it is not — in a position where it‘s not supposed to be, is that when complications can occur unfortunately?
A. Absolutely. Absolutely. I mean there‘s always something behind the peritoneum there. There‘s not like there is free space. There‘s not gas in your abdomen naturally. There‘s always bowel, there‘s always something right on the other side of that, whether it is large intestine or small intestine. It is always an incision where there can be injury.
Q. In the best of possible care?
A. Correct.
N.T., 2/5/16, at 700-01. Dr. Ascher-Walsh continued in this vein tying the physician‘s conduct to the standard of care, to the fact that an injury may occur in the absence of negligence.
Q. [Appellants’ Counsel] In your review, Dr. Ascher-Walsh, did you see anything by way of Dr. Shikora and Dr. Hansen‘s approach that suggests to you that they did not proceed in this case, that is proceed down through those layers, proceed to the peritoneum, proceed with the entry that was at all below the standard of care?
A. No.
N.T., 2/5/16, at 702. He later added:
A. It is a complication in this case.
Q. [Mitchell‘s Counsel] I see. And, doctor, as far as the literature is concerned — well, strike that. I think you had indicated in your report that the injury that Miss Mitchell sustained was unavoidable. That‘s what you said?
A. Correct.
Q. If it was unavoidable it would happen every time, wouldn‘t it?
A. No.
Q. Well, I don‘t understand if it is unavoidable, wouldn‘t it happen every time?
A. Not necessarily. It is unavoidable in the sense that he did everything he could to avoid it, yet it still happened, so, therefore, it was unavoidable.
N.T., 2/5/16, at 721.
Indeed, Dr. Ascher-Walsh was entirely consistent in his ultimate conclusion, based upon the above, as to whether the standard of care was breached:
Q. [Appellants’ Counsel] Now, with respect to those opinions, Dr. Ascher-Walsh, do you have an opinion as to whether on May 16th of 2012, Dr. Shikora, along with his assistant, Dr. Hansen met the standard of care?
A. I do.
Q. And what is your opinion in that regard?
A. I feel like they absolutely met the standard of care.
N.T. 2/5/16, at 694.
In our view, the above expert testimony, taken in toto, concerning risks and complications was both relevant and admissible regarding the proper standard of care and whether there was a breach thereof. Related thereto, the difficulty with the dissent‘s approach is that it would prevent a jury from obtaining a complete understanding of the applicable standard of care and the possible breach of that standard. Ultimately, the dissent‘s approach undermines the foundational tenet that injuries may occur in the absence of negligence and would work a radical change in medical malpractice jurisprudence, making physicians virtual guarantors of a result or warrantors of a cure — neither of which, as a matter of fact or law, is supportable.
Here, Mitchell‘s expert testified that the proper standard of care for performing a laparoscopic hysterectomy included identification of the underlying body structures before making an incision by looking into the abdomen, and contended that cutting into the colon underneath the peritoneum without proper
Accordingly, we find that the trial court herein properly distinguished between informed-consent evidence, which it did not admit, and surgical risks and complications evidence, which it admitted. In finding this risks and complications evidence to be inadmissible, the Superior Court erred. Therefore, we reverse the Superior Court‘s order, and reinstate the judgment on the verdict entered in favor of Appellants.
Chief Justice Saylor and Justices Baer and Mundy join the opinion.
Justice Wecht files a concurring opinion.
Justice Donohue files a concurring and dissenting opinion in which Justice Dougherty joins.