No Defense of Informed Consent in PA
Informed consent is a critical aspect of the medical profession, and often can provide a defense in med-mal cases. The Pennsylvania Supreme Court, however, recently limited the defense. In Brady v. Urbas, the court held that unless there is an allegation of lack of informed consent, the fact “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 ruling upholds the Superior Court’s holding that a trial judge improperly admitted into evidence consent forms signed by the plaintiff prior to surgery.
The underlying malpractice dispute arose from plaintiff’s claims that a doctor negligently treated her hammer-toe with a series of surgeries. She claimed that the doctor failed to determine the cause of her original condition and subsequently recommend and performed procedures that were counter-indicated. Significantly, plaintiff’s complaint did not include a cause of action for lack of informed consent.
Prior to trial, plaintiff filed a motion in limine to exclude consent related evidence at trial, including the surgical consent forms that she signed before each procedure, arguing such evidence was not probative as to whether the doctor operated within the applicable standard of care. In opposition, the defense argued that consent evidence was relevant to plaintiff’s credibility and state of mind at the time of the surgeries. The trial judge denied plaintiff’s motion and admitted the evidence. The jury returned a verdict in favor of the defendant doctor.
On appeal, the Superior Court vacated the verdict and remanded for a new trial. In doing so, the Superior Court adopted a bright-line rule, barring evidence of informed consent in medical malpractice cases involving claims of negligence.
The Pennsylvania Supreme Court, however, declined to adopt “the Superior Court’s broad pronouncement” to the extent it can be construed that informed-consent is always irrelevant in a medical malpractice case. Nonetheless, the Supreme Court concluded that “there is no assumption-of-the-risk defense available to a defendant physician which would vitiate his duty to provide treatment according to the ordinary standard of care. The patient’s actual, affirmative consent, therefore, is irrelevant to the question of negligence.”
The court noted that the fact that a patient agreed to a procedure despite the known risks, does not make it more or less likely that a physician was negligent. Furthermore, evidence of a patient’s consent can confuse the issues as a jury may improperly reason that the patient consented to the resultant injury, losing sight of the central question as to whether the defendant conformed to the applicable standard of care.
The Supreme Court’s decision will significantly impact the defense of medical malpractice claims where the plaintiff is not explicitly asserting a claim for lack of informed consent.
Attorneys and practitioners need to be aware of the impact of this ruling in preparing their defense and evaluating the admissibility of evidence related to consent for purposes of trial.