A Doctor Can Still Be Negligent Even If You Are Told Everything About A Procedure

October 31, 2018
Posted in Litigation
A Doctor Can Still Be Negligent Even If You Are Told Everything About A Procedure

On October 23, 2018, the Pennsylvania Supreme Court heard argument in Mitchell v. Shikora.  While, on the surface, Mitchell looks like a run-of-the-mill medical malpractice case, it actually  presents a unique question for the Court’s consideration: whether malpractice defendants are able to introduce evidence of a medical procedure’s risks and complications at trial.

In Mitchell, the plaintiff,  Lanette Mitchell, underwent a hysterectomy at UPMC Magee-Womens’ Hospital in Pittsburgh.  During the procedure, the surgeon, Dr. Evan Shikora, accidentally perforated Ms. Mitchell’s bowel.  Dr. Shikora was forced to abandon the surgery and summon a general surgeon, who repaired the laceration.

A year and a half later, Ms. Mitchell filed suit against Dr. Shikora, alleging that he committed negligence when he perforated her bowel.  At trial, Dr. Shikora sought to introduce evidence that bowel perforation was a known risk/complication of a hysterectomy.  Ms. Mitchell, however, asked the court to exclude such evidence on the basis that it might prejudice the jury.  Ultimately, Dr. Shikora was permitted to introduce the contested evidence over Ms. Mitchell’s objection, and the jury returned a defense verdict.

On appeal, the Superior Court reversed and remanded the case for a new trial.  The court reasoned that while the risks and complications of a hysterectomy may be relevant to establishing Dr. Shikora’s standard of care, they were immaterial to whether Dr. Shikora actually met that standard of care.  This is because a claim for breach of the standard of care (i.e., negligence) is distinct from a claim for failure to obtain informed consent.  Since Ms. Mitchell’s malpractice suit only alleged the former, the Superior Court expressed concern that evidence of risks and complications could mislead or confuse the jury.

While Mitchell was argued in late October, it will take several months for the Supreme Court to make a decision.  For example, while Nicolau v. Martin was argued before the Supreme Court on May 17, 2018 by our very own Nathan Murawsky, a decision was not issued until October 17, 2018.  A similar timeframe is to be expected for Mitchell.

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