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Mitchell v. Shikora

Superior Court of Pennsylvania

May 5, 2017

LANETTE MITCHELL, Appellant
v.
EVAN SHIKORA, D.O., UNIVERSITY OF PITTSBURGH PHYSICIANS d/b/a WOMANCARE ASSOCIATES, MAGEE WOMEN'S HOSPITAL OF UPMC

         Appeal from the Judgment entered February 22, 2016 in the Court of Common Pleas of Allegheny County, Civil Division, No(s): GD 13-023436

          BEFORE: DUBOW, MOULTON and MUSMANNO, JJ.

          OPINION

          MUSMANNO, J.

         Lanette Mitchell ("Mitchell") appeals from the Judgment entered in favor of Evan Shikora, D.O. ("Dr. Shikora"), University of Pittsburgh Physicians d/b/a Womancare Associates, Magee Women's Hospital of UPMC ("Magee") (collectively "Defendants"). We reverse and remand for a new trial.

         On May 16, 2012, Dr. Shikora, an obstetrical and gynecological surgeon, and Karyn Hansen, M.D. ("Dr. Hansen"), performed a hysterectomy on Mitchell at Magee. After Mitchell was administered general anesthesia, Dr. Shikora, using an open laparoscopic technique, made an incision in Mitchell's abdomen. While opening the sheath of the peritoneum, Dr. Shikora smelled fecal matter and suspected he had severed Mitchell's bowel. Dr. Shikora abandoned the hysterectomy and consulted a general surgeon, Dr. Anita Courcoulas ("Dr. Courcoulas"). Dr. Courcoulas repaired the bowel, which had been severed nearly in half, by performing a diverting loop ileostomy. Following the surgery, Mitchell was required to wear a colostomy bag for a short time.

         On December 16, 2013, Mitchell filed a medical negligence action against Defendants. Subsequently, the parties filed numerous pleadings. On January 25, 2016, Mitchell filed a Motion in Limine, seeking to exclude consent and risk/complications evidence at trial. The trial court granted Mitchell's Motion as to the lack of consent, as she had not raised such a claim in her action. However, as to the whether a bowel injury was a known risk or complication of the surgery, the trial court denied Mitchell's Motion and allowed such evidence to be presented at trial.

         The case proceeded to a jury trial. On February 5, 2016, the jury returned a verdict in favor of Defendants. Mitchell filed a Motion for Post-Trial Relief, seeking a new trial excluding the risk/complications evidence. The trial court denied the Motion. Thereafter, the trial court entered

         Judgment in favor of Defendants. Mitchell filed a timely Notice of Appeal and a court-ordered Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement.

On appeal, Mitchell raises the following question for our review:
Whether the trial court erred by allowing [D]efendants to admit evidence of the "known risks and complications" of a surgical procedure[, ] in a medical malpractice case that did not involve informed consent-related claims, and such evidence was, therefore, irrelevant, unfairly prejudicial, and misled jurors on an issue that directly controlled the outcome of the case, thereby warranting a new trial?

Brief for Appellant at 4.

         "[W]hen reviewing the denial of a motion for new trial, we must determine if the trial court committed an abuse of discretion or error of law that controlled the outcome of the case." Fletcher-Harlee Corp. v. Szymanski, 936 A.2d 87, 93 (Pa. Super. 2007) (citation omitted). Further, "[w]hen we review a trial court ruling on admission of evidence, we must acknowledge that decisions on admissibility are within the sound discretion of the trial court and will not be overturned absent an abuse of discretion or misapplication of law." Phillips v. Lock, 86 A.3d 906, 920 (Pa. Super. 2014) (citation omitted). "In addition, for a ruling on evidence to constitute reversible error, it must have been harmful or prejudicial to the complaining party." Id. (citation omitted).

         Mitchell contends that "in a medical negligence action where there are no claims for informed consent, evidence related to the risks and complications of surgery as communicated to the patient is generally excluded as irrelevant." Brief for Appellant at 20. Mitchell argues that such evidence is inadmissible because there is no assumption of risk defense in a medical negligence action, and the evidence is irrelevant as to the question of negligence. Id. at 21, 24; see also id. at 22-23 (wherein Mitchell points out that evidence of risks and complications is relevant in an informed consent action, not a medical negligence action); id. at 28-29 (noting that Mitchell did not raise a res ipsa loquitur claim). Mitchell claims that the admission of risks and complications evidence improperly allowed the jury to consider her consent to undergo the surgery to be the same as her consent to the risks and complications. Id. at 24-25.

         Mitchell further asserts that she did not allege a negligence claim based on an alleged breach of the standard of care for failure to inform her of the risks of the surgery. Id. at 22-23, 26-27. Mitchell argues that in her negligence action, she claimed that Dr. Shikora breached his duty of care by failing to identify her bowel prior to cutting it, and that evidence that a bowel injury was a known risk or complication of the surgery was not relevant to whether Dr. Shikora met the standard of care. Id. at 26-27. Mitchell cites the testimony of Defendants' expert that the bowel injury played no role in determining whether Dr. Shikora acted negligently, and thus asserts that the risks and complications evidence did not aid the jury in determining whether Defendants acted negligently. Id. at 27-28; see also id. at 29. Mitchell contends that because the admission of the risks and complications evidence was unfairly prejudicial and controlled the outcome of the case, a new trial is required. Id. at 29-31.

Evidence is relevant if it has "any tendency to make a fact [of consequence] more or less probable than it would be without the evidence." Pa.R.E. 401. Irrelevant evidence is inadmissible, and relevant evidence "is admissible except as otherwise provided by law." Pa.R.E. 402. The "except as otherwise provided by law" qualifier includes the principle that relevant evidence may be excluded "if its probative value is outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Pa.R.E. 403.

Brady v. Urbas, 111 A.3d 1155, 1161 (Pa. 2015).

         Where, as here, the plaintiff has only raised a medical negligence claim, our Supreme Court set forth the relevant law with regard to the admission of known risks and complications evidence as follows:

To prevail on a claim of medical negligence, the plaintiff must prove that the defendant's treatment fell below the appropriate standard of care. We therefore consider whether informed-consent evidence is probative of that question. In undertaking this inquiry, it is important to recognize that such information is multifaceted: it reflects the doctor's awareness of possible complications, the fact that the doctor discussed them with the patient, and the patient's decision to go forward with treatment notwithstanding the risks.
Some of this information may be relevant to the question of negligence if, for example, the standard of care requires that the doctor discuss certain risks with the patient. Evidence about the risks of surgical procedures, in the form of either testimony or a list of such risks as they appear on an informed-consent sheet, may also be relevant in establishing the standard of care. In this regard, we note that the threshold for relevance is low due to the liberal "any tendency" prerequisite. Accordingly, we decline … to hold that all aspects of informed-consent information are always irrelevant in a medical malpractice case.
Still, the fact that a patient may have agreed to a procedure in light of the known risks does not make it more or less probable that the physician was negligent in either considering the patient an appropriate candidate for the operation or in performing it in the post-consent timeframe. Put differently, 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. Moreover, … assent to treatment does not amount to consent to negligence, regardless of the enumerated risks and complications of which the patient was made aware. That being the case, in a trial on a malpractice complaint that only ...

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