The case of Mitchell v. Shikora will soon be heard by the Pennsylvania Supreme Court. Physicians are hoping that the high court reverses a prior ruling, which they say could make them liable for known complications that may occur in surgical procedures. The primary issue involves whether testimony by expert witnesses regarding known complications can be suppressed.
Both the state and national medical associations are awaiting the outcome and their Litigation Center recently submitted an amicus brief to the high court explaining their views. They fear this ruling will allow patients to sue for outcomes that result from unavoidable, known complications that occur in certain procedures, regardless of if the surgeon was negligent.
Plaintiff Lanette Mitchell underwent a laparoscopic hysterectomy and incurred a bowel perforation. She filed a malpractice claim against the obstetrician, Dr. Evan Shikora, alleging that he demonstrated negligence in performing the procedure. It is important to note that the claim did not assert a failure in obtaining informed consent prior to the operation. During trial, medical experts from both parties assessed whether Shikora was negligent in creating the perforation.
A defense expert began explaining to the jury that perforations were common regardless of whether an error was made in this procedure; however, a plaintiff attorney raised an objection because this point was not relevant to whether proper standards of medical care were maintained by the defendant. The judge allowed the testimony to continue and the jury ruled in favor of the defense.
The Superior Court next heard Mitchell's appeal and ruled the case should be tried again without the jury hearing the testimony regarding the known risks. The physician advocacy group contends that testimony about the potential complications is needed to assess the standards of care. The brief explains that surgeons perform procedures that can lead to risks that are not the result of negligence and this change would essentially make them “strictly liable”. They feel it will lead surgeons to be hesitant to perform these needed procedures.
The Pennsylvania Orthopaedic Society Political Action Committee feels this ruling puts their “livelihood in jeopardy”. They assert that the occurrence of known surgical complications should not be evidence of negligence. In other words, if a surgeon performs a surgery according to the proper standards of care that no basis exists for negligence based on inherent complications that are known to occur.
The court seeks to avoid having juries hear evidence that could mislead or confuse them. The issue is based on whether the evidence has relevance. Here, the court found that the testimony of risks and complications was not relevant to determining if the standards of care were adhered to. To prove a medical malpractice claim the injured party must prove that the practitioner demonstrated a failure in maintaining care standards.
When a patient consents to a procedure with known risks it should have no bearing on whether malpractice occurred, unless the claim centers on a failure to obtain informed consent. Physicians think this ruling could drive up the cost of malpractice insurance and encourage claims that stem from complication-related outcomes that are not the result of negligence.