Evidence that a patient affirmatively consented to treatment after being informed of the risks of that treatment is generally irrelevant to a cause of action sounding in medical negligence, the Pennsylvania Supreme Court ruled in Brady v. Urbas, __ A.3d __ (No. 74 MAP 2014, filed March 25, 2015). William Urbas, P.D.M., performed four operations on the second toe of Maria Brady’s right foot. The first surgery was successful but the three follow-up procedures left Brady’s toe less stable and significantly shorter. Brady filed a complaint asserting that Dr. Urbas negligently treated her toe by failing to determine the cause of her deformity and performing improper procedures. Notably, Brady did not include a cause of action for lack of informed consent. Brady sought to exclude any consent-related evidence at trial, including the surgical consent forms she had signed. The trial court allowed the evidence, which the jury asked to review before returning its verdict that Dr. Urbas was not negligent.
On appeal, the Superior Court vacated and remanded for a new trial. In doing so, the Court adopted a per se rule excluding evidence of informed consent in a medical malpractice action. The Court reasoned that where lack of informed consent is not an issue, evidence of consent does not help a plaintiff prove negligence and only serves to confuse the jury, which could conclude that the plaintiff’s consent to surgery was tantamount to consent to the injury.
On review, the Supreme Court, noting that the threshold for relevance under Pa. R.E. 401 is low, declined to endorse the Superior Court’s broad exclusionary rule. Writing for a unanimous Court, Chief Justice Saylor noted that consent evidence could be relevant to the question of negligence if, for example, the standard of care requires the doctor to discuss certain risks with the patient. Still, in most cases, including the case sub judice, where the malpractice complaint only asserts negligence and not lack of informed consent, evidence that a patient agreed to proceed with an operation in spite of the risks of which she was informed is irrelevant and should be excluded. Accordingly, the Superior Court’s order vacating the judgment and remanding for a new trial was affirmed.
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