surgeons, surgery Photo: shutterstock.com

The Pennsylvania Supreme Court has agreed to hear arguments for the second time in two years over when defendants in medical negligence cases should be barred from introducing evidence of a procedure’s risks and complications.

The Supreme Court on Nov. 20 granted allocatur in Mitchell v. Shikora. The court’s one-page per curiam order specifically agreed to hear arguments about whether the Superior Court’s recent holding that a trial court improperly allowed jurors to hear evidence about the risks and complications of a hysterectomy went against a 2015 Supreme Court ruling, which allows evidence of general risks and complications in medical malpractice cases.

In May, a three-judge panel of the Superior Court held that, even though the defendants argued the information was necessary to establish the standard of care, allowing in the evidence was prejudicial to the plaintiffs.

“Acknowledging a liberal threshold to determine the relevancy of such evidence, we nevertheless emphasize that the evidence must be probative of whether defendants’ treatment of [plaintiff Lanette] Mitchell fell below the standard of care,” Senior Judge John Musmanno said in the Superior Court’s 12-page precedential opinion. “The fact that one of the risks and complications of the laparoscopic hysterectomy, i.e., the perforation of the bowel, was the injury suffered by Mitchell does not make it more or less probable that [defendant Dr. Evan] Shikora conformed to the proper standard of care for a laparoscopic hysterectomy and was negligent. Indeed, in deciding to undergo this surgery, Mitchell expects that the treatment will be rendered in accordance with applicable standard of care, regardless of the risks.”

In making its decision, the Superior Court panel relied on the Supreme Court’s guidelines outlined in the 2015 case Brady v. Urbas. The question the defendants posed to the Supreme Court in its appeal, however, focused on whether the Superior Court’s ruling contradicted the Supreme Court’s holding in Brady.

According to Musmanno, Shikora, an obstetrical and gynecological surgeon, performed a hysterectomy on Mitchell in May 2012, but midway through the operation, he suspected he had severed Mitchell’s bowel. Shikora abandoned the hysterectomy and consulted a general surgeon, who repaired the bowel, which had been severed nearly in half.

Mitchell sued Shikora, alleging negligence, and later sought to exclude evidence about whether bowel injury was a known risk or complication of the surgery. Musmanno noted that, although the trial court did not allow in evidence related to informed consent, including conversations between Shikora and Mitchell or evidence of Mitchell’s consent despite the risks, the jury was allowed to hear about the general risks and complications associated with a laparoscopic surgery.

The jury rendered a defense verdict, and Mitchell subsequently appealed, arguing that the court should not have included any information about the risks and complications.

Musmanno cited Brady, and said the inquiry into whether the information can be allowed at trial should be decided on a case-by-case basis. Ultimately, he said the information was irrelevant to Mitchell’s claims and was overly prejudicial as well as misleading.

“In point of fact, this evidence was central to the defendants’ defense, as demonstrated by their opening and closing statements,” Musmanno said.

Massa Law Group attorney Rudolph Massa, who is representing Mitchell, said that, by taking up the appeal, the court may be looking to further clarify the guidelines established in Brady.

“They may want to make sure there is a guidelines for the trial courts. I think there is a clear guideline. Brady established that, and Mitchell is consistent with that,” he said.

Justin Gottwald of Dickie, McCamey & Chilcote, who is representing Shikora, said the Superior Court’s ruling was inconsistent with Brady.

“It’s absolutely vital for a physician and particularly a surgeon to introduce evidence that the complication occurred in the absence of negligence,” he said. “Otherwise, we run the risk of turning medical negligence cases into strict liability.”