The Pennsylvania Supreme Court is poised to decide a case that could have wide-ranging implications for health care practitioners. In Pennsylvania, the law in medical malpractice cases has been that a doctor – or other health care professional – cannot claim that a patient “assumed the risk” of a procedure going wrong. For example, if a surgeon negligently injures a patient during a surgery, the surgeon can’t say that because the patient agreed to the surgery and was informed of the potential risks, that the patient agreed to the surgeon’s negligent performance.
The case currently pending before the Pennsylvania Supreme Court, Mitchell v. Shikora, carries the potential for eroding this precedent, at least if the surgeon and the American Medical Association have their way. In the Mitchell case, the surgeon perforated the patient’s bowel while performing a hysterectomy. At trial, the surgeon sought to introduce evidence that bowel perforation is a common risk in such procedures.
The court allowed introduction of the evidence over the plaintiff’s objection. On appeal, the Pennsylvania Superior Court overturned the trial judge’s ruling and remanded the case for a new trial. In its ruling, the Superior Court held that evidence of risks and complications was prejudicial and “immaterial” as to whether the surgeon’s performance met the standard of care.
The Pennsylvania Supreme Court granted review, and several physicians’ groups – including the AMA – filed amicus briefs urging the court to overturn the Superior Court’s decision. If the high court does so, it could serve to lower the standard of care for medical professionals in Pennsylvania. This, in turn, would put patients at greater risk and make medical negligence cases more difficult to prove for plaintiffs’ attorneys.