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Superior Court Orders New Trial after Evidence of Informed Consent was Improper in Medical Negligence Case

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In an opinion issued on November 12, 2013, a three-judge panel for the Pennsylvania Superior Court held that repeated references to a patient’s consent to the surgeries at issue in a medical malpractice trial were both irrelevant and unduly prejudicial.  Given the extent of these violations, the Court held that a new trial was appropriate. 

The underlying case of Brady v. Urbas, M.D., et al. involved a plaintiff who brought suit against her podiatrist alleging injuries related to several surgeries performed on her by her podiatrist.  The complaint set forth claims sounding in negligence and loss of consortium, the latter of which was brought on behalf of her husband. 

Prior to the trial, a motion in limine was filed on behalf of the plaintiff, seeking to preclude all evidence related to the plaintiff’s consent regarding the risks of the procedures at issue.  In the motion, counsel for the plaintiff argued that the issue of informed consent was not a defense to negligence and was irrelevant to the issue of whether the conduct of the defendant breached the standard of care.  Moreover, counsel asserted that evidence of consent would confuse or mislead the jury, thereby resulting in unfair prejudice.  The trial court denied the motion and throughout the ensuing trial, numerous references were made to the plaintiff’s consent to the risks associated with the procedures at issue, including a copy of the consent form which was sent back with the jury during deliberation.  A verdict was subsequently returned in favor of the defendant.  Counsel for the plaintiff then filed post trial motions for a new trial, which were denied. 

Thereafter, an appeal was filed with the Superior Court on behalf of the plaintiff, alleging that the trial court had abused its discretion by allowing evidence of the consent-related material.  Noting that the claim at issue was one sounding in medical negligence, and taking into account the elements required to prove this claim, the Superior Court held that evidence of informed consent had no relevance in a claim for medical negligence.  Even if the evidence did hold some marginal relevance, the Court noted that such evidence could have deceived the jury into believing that the plaintiff’s injuries “simply were a risk of the surgeries and that she accepted such risks, regardless of whether [the physician’s] negligence caused the risks to occur.”  Therefore, it was the opinion of the Court that the plaintiff’s knowledge of the risks associated with her surgeries, along with her consent to the same, were impermissible, and that the case was to be remanded for a new trial.


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