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Supreme Court Grants Appeal for Case Involving Informed Consent as Evidence

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Following the Pennsylvania Superior Court’s November 2013 decision in Brady v. Urbas, the Supreme Court recently granted allocator to decide whether the Superior Court properly ruled that evidence of informed consent was impermissible to defend a medical malpractice case.

In Brady, a plaintiff sued her podiatrist for injuries related to several surgeries that the podiatrist performed.  Her husband additionally sued for loss of consortium.  Prior to trial, the plaintiffs filed a motion in limine to preclude the defendant from introducing any evidence regarding the informed consent forms the patient had signed, arguing that informed consent was not a defense to negligence and was irrelevant as to the issue of whether the defendant breached the standard of care.  Their motion was denied.  Consequently, the defendant’s counsel made numerous references to the informed consent form during trial and a copy of the form was sent back with the jury for deliberation.  The jury returned a defense verdict.  Plaintiff subsequently filed an appeal to the Superior Court.

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

The Pennsylvania Supreme Court will now decide whether such a blanket prohibition of evidence of informed consent is appropriate as opposed to allowing the trial court the discretion to rule on such evidentiary matters on a case-by-case basis. 


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