MARIA A. BRADY AND ROBERT BRADY, JR., Appellees
WILLIAM M. URBAS, D.P.M., Appellant
Argued November 18, 2014.
Appeal from the Order of the Superior Court, dated 11/12/13, at No. 3470 EDA 2012, vacating and remanding the judgment of the Delaware County Court of Common Pleas, Civil Division, of 12/5/12 and entered on 1/16/13, at No. 10-15584. Appeal Allowed July 16, 2014 at 1019 MAL 2013.
Trial Court Judge: G. Michael Green, Judge.
Intermediate Court Judges: Jacqueline O. Shogan, Judge, David N. Wecht, Judge, Robert E. Colville, Judge.
For William M. Urbas, APPELLANT: Robert E. Dillon, Esq., Naulty, Scaricamassa & McDevitt, L.L.C. Alan Steven Gold, Esq., Gold & Ferrante, P.C.
For Maria and Robert Brady, APPELLEE: Peter Andrew Greiner, Esq., Joseph R. Podraza, Esq., Richard A. Sprague, Esq., Sprague & Sprague.
For PA Association for Justice, APPELLEE AMICUS CURIAE: Joseph Z. Traub, Esq., Raynes McCarty.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, STEVENS, JJ. MR. CHIEF JUSTICE SAYLOR. Former Chief Justice Castille did not participate in the decision of this case. Messrs. Justice Eakin and Baer, Madame Justice Todd and Mr. Justice Stevens join the opinion.
MR. CHIEF JUSTICE SAYLOR
In this appeal by allowance involving alleged medical negligence, we consider whether a doctor may introduce evidence that the patient was informed of and acknowledged various risks of surgery, although the complaint does not assert a cause of action based on a lack of informed consent.
Appellee, Maria Brady, had a lengthy history of foot problems. By 2007, both of her feet were in pain due to toe deformities. Appellee's podiatrist, William Urbas, D.P.M., successfully treated toes on her left foot with surgery; he then turned his attention to her right foot. Regarding that foot, one of Appellee's primary complaints pertained to a hammer-toe condition of her second toe (next to the big toe). This deformity caused the middle of Appellee's second toe to rise above the plane of the foot, which in turn caused rubbing and pain when Appellee wore shoes.
To address this condition, Dr. Urbas performed a total of four operations between March 2008 and January 2010. Before each surgery, he explained the risks and complications that could occur, and Appellee signed a consent form acknowledging her awareness of these possible outcomes. The first surgery entailed removing approximately one centimeter of bone from the proximal phalanx of the second toe in an effort to straighten the toe. The parties agree that Dr. Urbas was not negligent as to that surgery. Unfortunately, however, this first operation did not finally alleviate Appellee's condition because, in the post-operative timeframe, certain internal tissues contracted, pulling the toe upward once again. Dr. Urbas eventually performed three more surgeries, each involving, among other things, the removal of additional bone material with the expectation that the foot would, over time, generate soft tissue to fill the gap and provide flexibility. Nevertheless, Appellee's pain persisted and, in the end, her toe was less stable and significantly shorter than it had been initially.
In August 2010, Appellee consulted a different podiatrist, Dr. Harold Schoenhaus, who performed a bone-graft operation which returned the toe to approximately ninety percent of its original length. This procedure also had the effect of restoring some of ...