from the Judgment entered February 22, 2016 in the Court of
Common Pleas of Allegheny County, Civil Division, No(s): GD
BEFORE: DUBOW, MOULTON and MUSMANNO, JJ.
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.
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
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.
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
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
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.
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).
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.
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).
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
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