Appeal from the Judgment of January 16, 2013, in the Court of Common Pleas of Delaware County, Civil Division at No. 10-15584
BEFORE: SHOGAN, WECHT and COLVILLE [*], JJ.
This is an appeal from a judgment entered in favor of Appellee. We vacate the judgment, reverse the order denying Appellants' post-trial motion for a new trial, and remand for a new trial.
The pertinent background underlying this matter can be summarized in the following manner. Appellants Maria Brady ("Mrs. Brady") and Robert Brady ("Mr. Brady") (collectively referred to as "Appellants") filed a complaint against Appellee William Urbas, D.P.M. ("Dr. Urbas"), wherein they made the following relevant averments.
Since 2007, Dr. Urbas was Mrs. Brady's primary podiatrist. In 2007, Dr. Urbas successfully treated a condition Mrs. Brady had with her left foot. On February 25, 2008, Mrs. Brady sought treatment from Dr. Urbas for a problem associated with the second toe of her right foot. On March 25, 2008, Dr. Urbas performed a surgery on Mrs. Brady's toe. The surgery failed to resolve Mrs. Brady's medical problem. On February 4, 2009, June 23, 2009, and January 5, 2010, Dr. Urbas performed additional surgeries on Mrs. Brady's toe, but the surgeries failed to resolve the problem. As a result of these surgeries, Mrs. Brady's toe is extremely shortened and causes her extreme and constant pain.
Appellants' complaint contained two counts. Mrs. Brady brought a negligence count against Dr. Urbas, and Mr. Brady brought a loss of consortium count against Dr. Urbas.
Appellants eventually filed a "Motion In Limine to Exclude Informed Consent-Related Evidence at Trial" ("the Motion"). According to the Motion, at Mrs. Brady's deposition, Dr. Urbas' counsel questioned Mrs. Brady "about the possible risks of surgery that were disclosed by Dr. Urbas and/or the contents of consent forms she signed prior to the surgeries by Dr. Urbas." The Motion, 10/09/12, at ¶3. Appellants contended that Dr. Urbas should not be permitted to offer at trial any evidence regarding Mrs. Brady's consent to surgery or her knowledge of risks associated with the surgeries. Appellants argued:
5. Because this case is solely based on the substandard quality of medical care Dr. Urbas provided to [Mrs. Brady], and pursues no lack of informed consent claim against Dr. Urbas, evidence of the disclosure of the possible risks of surgery Dr. Urbas may have discussed with [Mrs. Brady] is not relevant to any issue involved in this strictly professional negligence action and, therefore, should be excluded at trial.
6. In addition, because evidence of possible risks of surgery Dr. Urbas may have discussed with [Mrs. Brady] is not a defense in this professional negligence action, such evidence additionally should be excluded at trial because its probative value is plainly outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.
Id. at ¶¶5. and 6.
In response to the Motion, Dr. Urbas contended:
5. Denied. Evidence relating to what [Mrs. Brady] was aware of specifically regarding the surgery, including risks, alternatives and complications are relevant to the credibility of the witness and her state of mind at the time of the surgeries at issue and not solely used to prove or disprove informed consent. Moreover, [Appellants'] expert, specifically opines that there was a lack of informed consent.
6. Denied. Evidence regarding Dr. Urbas's discussion with [Mrs. Brady] of the risks, alternative [sic] and complications of the surgeries performed is not prejudicial. There [sic] mere fact that a surgery did not result in the desired outcome does not prove negligence, therefore, evidence that [Mrs. Brady] was aware of certain risks, including pain, swelling, ...