;)
April 13th, 2015
On March 25, 2015, the Pennsylvania Supreme Court, in Brady v. Urbas, held that evidence regarding informed consent is irrelevant in cases involving claims solely based upon medical negligence.
Ms. Brady sought consultation with Dr. Urbas, a podiatrist, for problems with her right foot. Dr. Urbas informed Ms. Brady of the nature of her condition, i.e. “hammer toe,” and they discussed available treatment options, including surgery. Dr. Urbas also informed Ms. Brady of the risks and reasonably anticipated outcomes associated with each alternative treatment, and specifically advised Ms. Brady that even under the most optimal surgical circumstances, bad outcomes could still occur. Ms. Brady memorialized her understanding of the information by signing a consent form.
Dr. Urbas performed four (4) operations between March 2008 and January 2010. Ms. Brady’s pain persisted; her toe was shorter and less stable. In August 2010, Ms. Brady consulted a different podiatrist, who performed a bone-graft operation, which returned her toe to almost its original length and function with less pain.
In December 2010, Ms. Brady sued Dr. Urbas, alleging that he negligently treated her toe in the three follow-up surgeries performed after March 2008. She averred that she could not have reasonably discovered the harm she suffered until after the fourth surgery because Dr. Urbas’ advice, assurances and recommendations lulled her into a false sense of security and concealed the true nature of her condition. As to the alleged negligence, Ms. Brady asserted that Dr. Urbas failed to determine the cause of her original toe condition, and recommended and performed procedures that were not indicated. Notably, the complaint did not include a cause of action for lack of informed consent.
At trial, Ms. Brady filed a motion in limine to exclude any consent-related evidence at trial, including the surgical consent forms she signed before each procedure. Ms. Brady argued that such evidence was not relevant to whether Dr. Urbas performed within the appropriate standard of care. Dr. Urbas responded that the risks and complications of surgery would be relevant to Ms. Brady’s credibility as a witness and to her state of mind at the time of the surgeries, and that the evidence of consent would not be used to prove or disprove informed consent. The trial court denied the motion and permitted admission of the consent-related evidence, stating that the risks and complications associated with the alleged negligent procedures and the course of treatment to alleviate those complications were relevant to determine if Dr. Urbas was negligent.
At trial, experts for both sides agreed that the complications Ms. Brady experienced after the first surgery were common, although they differed as to whether Dr. Urbas was negligent in his recommendations, care, and treatment. Dr. Urbas testified that he informed Ms. Brady of the possible complications from the surgery and that the follow-up procedures were reasonable to alleviate these problems. During deliberations, the jury asked to review the consent forms, stating that they needed to know what Ms. Brady agreed to. The court provided the forms, and soon thereafter, the jury returned a defense verdict.
Ms. Brady appealed to the Pennsylvania Superior Court, who vacated and remanded for a new trial. The Superior Court established a per se rule of exclusion mirroring the law of Virginia, explaining that “evidence of informed consent is irrelevant in a medical malpractice case.”
The Pennsylvania Supreme Court declined 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.
