A patient’s informed consent to the risks of surgery may not form the “central component” of a doctor’s defense to a medical malpractice action, the state Superior Court has ruled, and repeated references to it have caused a defense verdict to be thrown out in a case out of Delaware County.

“Evidence of informed consent is irrelevant in a medical malpractice case,” Senior Judge Robert E. Colville wrote in Brady v. Urbas, where the frontline appeals court ordered a new trial in a Delaware County case where a jury returned a defense verdict after repeatedly hearing about the patient’s informed consent to surgery.

Maria Brady, whose toe was shortened as a result of several surgeries, won a retrial Tuesday. Evidence about her acknowledgement of the operations’ risks should not have been introduced, the court said. Furthermore, Colville wrote for a unanimous three-judge panel that references to Brady’s consent could have directed the jury’s attention away from the alleged negligence of Dr. William Urbas.

“The evidence clearly could have misled or confused the jury by leading it to believe that Mrs. Brady’s injuries simply were a risk of the surgeries and that she accepted such risks, regardless of whether Dr. Urbas’ negligence caused the risks to occur,” Colville said.

The case, filed in the Delaware County Court of Common Pleas, originated from a two-pronged complaint in which Brady and her husband, Robert Brady, levied loss of consortium and negligence claims against Urbas, according to Colville.

On Feb. 25, 2008, Maria Brady went to Urbas for treatment of a problem with the second toe of her right foot, Colville said. Exactly one month later, Urbas performed a surgery that failed to resolve the issue with Brady’s toe.

Additional surgeries in 2009 and 2010 resulted in the extreme shortening of Brady’s toe, which causes her “extreme and constant pain,” according to Colville.

Eventually, the couple filed a motion to exclude informed-consent-related evidence at trial.

According to Colville, the Bradys argued in their motion that the case was based solely on the “substandard quality of care” provided by Urbas and that the disclosure of possible risks discussed with Urbas were not relevant to any issue in the professional negligence action.

The Bradys also claimed in their motion that evidence of prior discussion of the risks related to surgery between Urbas and Maria Brady could cause prejudice and create confusion among the jury, according to Colville.

Urbas answered the motion, claiming evidence relating to what Brady was aware of specifically regarding the surgery was relevant to her credibility and state of mind at the time of the surgeries, according to Colville.

“Moreover, [the Bradys'] expert specifically opines that there was a lack of informed consent,” Colville cited from Urbas’ response.

Additionally, Urbas said in his response that the evidence of consent was not prejudicial and the “mere fact” that the surgery did not result in the desired outcome did not prove negligence, according to Colville.

The motion was denied by the trial court and a jury trial commenced. Colville said that throughout the trial, reference was made to Brady’s knowledge of the risks involved with her surgery, with copies of some of the consent forms being provided to the jury for use in its deliberations.

The jury determined that Urbas was not negligent, Colville said. After that determination, the plaintiffs appealed, claiming that the trial court abused its discretion in introducing the consent evidence and that a new trial was needed.

In support of its decision, the trial court claimed, “The consent forms were both competent and relevant. The jury in this matter was asked to determine if the final three procedures performed on” Brady by Urbas “deviated from the standard of care of podiatric medicine. The risks and complications associated with the alleged negligent procedures and the course of treatment to alleviate those complications associated were relevant to determine if Dr. Urbas was negligent,” Colville cited from the trial court.

The plaintiffs highlighted a 2004 decision from the Supreme Court of Virginia that, according to Colville, said “the awareness of the general risks of surgery is not a defense available to [the defendant physician] against a claim of deviation from the standard of care. … Nor does it help the defendant show he was not negligent. … In effect the jury could conclude that consent amounted to a waiver, which is plainly wrong.”

Colville said that while the Virginia court’s decision was not binding on the Pennsylvania Superior Court, “We believe that court provided a persuasive and succinct rationale for excluding from evidence in a medical malpractice case precisely the evidence the trial court allowed the jury to consider in this matter.”

Evidence of Brady’s consent to her surgeries and her knowledge of the risks associated with them was inadmissible, according to Colville, and the trial court abused its discretion by ruling to the contrary.

“We determine further that this error controlled the outcome of this case,” Colville said. “The evidence was a central component of Dr. Urbas’ defense and was referenced throughout the trial.”

The plaintiffs were represented by Peter A. Greiner of Sprague & Sprague. Greiner said he could not comment on the ruling until he had spoken with his clients, and did not call back by press time.

Urbas’ attorney, Robert E. Dillon of Naulty, Scaricamazza & McDevitt in Philadelphia, did not return calls seeking comment.

P.J. D’Annunzio can be contacted at 215-557-2315 or pdannunzio@alm.com. Follow him on Twitter @PJDAnnunzioTLI.

(Copies of the eight-page opinion in Brady v. Urbas, PICS No. 13-3157, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •