Consent Irrelevant for Medical Negligence When No Claim for Lack of Informed Consent

A woman had a history of foot problems due to toe deformities. Her podiatrist successfully treated toes on her left foot with surgery. Her right foot had a hammer-toe of her second toe (next to the big toe). This deformity caused the middle of the woman’s second toe to rise above the plane of the foot, which in turn caused rubbing and pain when she wore shoes. To address this condition, the podiatrist performed a total of four operations over about two years. Before each surgery, he explained the risks and complications that could occur, and the woman 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. Unfortunately, however, this first operation did not alleviate the woman's condition because, in the post-operative timeframe, certain internal tissues contracted, pulling the toe upward once again. The podiatrist 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, the woman's pain persisted and, in the end, her toe was less stable and significantly shorter than it had been initially.


Subsequently, the woman consulted a different podiatrist, 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 the toe's stability and substantially reducing the pain. After this surgery, the woman returned to all levels of activity.


The woman sued the first podiatrist for medical malpractice. The complaint alleged that the first podiatrist negligently treated her toe in the three follow-up surgeries. The complaint alleged the podiatrist negligently failed to determine the cause of her original toe condition, and recommended and performed procedures that were counter-indicated. The woman explained that she could not have reasonably discovered the harm she suffered until after the fourth surgery because the first podiatrist’s advice, assurances, and recommendations lulled her into a false sense of security and concealed the true nature of her condition.


The woman filed a motion in limine to exclude any consent-related evidence at trial, including the surgical consent forms she signed before each procedure. She argued that this evidence was not relevant to whether the first podiatrist performed within the appropriate standard of care. Further, she maintained that the probative value of this evidence was outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. The first podiatrist responded that the risks and complications of surgery would be relevant to the woman's credibility as a witness and to her state of mind at the time of the surgeries, and that the evidence of consent would not be used to prove or disprove informed consent. The Civil Division of the Delaware County Court of Common Pleas denied the motion and permitted admission of the consent-related evidence.


At the jury trial, experts for both sides testified that the complications the woman experienced after the first surgery were common, although they differed as to whether the first podiatrist was negligent in his recommendations, care, and treatment of the woman. The first podiatrist testified that he informed the woman of the possible complications from the surgery and that the follow-up procedures were reasonable to alleviate these problems. At various other points during the trial, the woman's consent to surgery and her knowledge of the risks involved were discussed.


During deliberations, the jury asked to review the consent forms, stating that they needed to know what the woman had agreed to. The trial court provided the forms. Shortly thereafter, the jury returned a verdict finding that the first podiatrist was not negligent in his care and treatment of the woman. The woman moved for a new trial on the basis that the trial court erred in admitting the consent evidence. The trial court entered judgment on the jury verdict and denied the patient's post-trial motions.


The Superior Court vacated, reversed, and remanded. The appellate court established a per se rule of exclusion explaining that evidence of informed consent is irrelevant in a medical malpractice case. The appellate court added, in the alternative, that even if such proofs had some marginal relevance in the present case, they could have misled or confused the jury by leading it to believe that the woman’s injuries simply were a risk of the surgeries and that she accepted such risks, regardless of whether the first podiatrist’s negligence caused the risks to occur. Finally, the appellate court reasoned that the trial court's error was prejudicial, since the consent evidence constituted a central component of the first podiatrist’s defense and the jury reviewed the consent forms during deliberations.


The Supreme Court of Pennsylvania affirmed. The court held that evidence that a patient affirmatively consented to treatment after being informed of the risks of that treatment is generally irrelevant to a cause of action sounding in medical negligence.


Evidence that a patient affirmatively consented to treatment after being informed of the risks of that treatment is generally irrelevant to a cause of action sounding in medical negligence when no claim made for lack of informed consent. 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 be relevant in establishing the standard of care in a malpractice action. 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. There is no assumption-of-the-risk defense available to a defendant physician that would vitiate the duty to provide treatment according to the ordinary standard of care. A patient's assent to medical treatment does not amount to consent to negligence, regardless of the enumerated risks and complications of which the patient was made aware. In a trial on a malpractice complaint that only asserts negligence, and not lack of informed consent, evidence that a patient agreed to go forward with the operation, in spite of the risks of which she was informed, is irrelevant and should be excluded. The court reasoned that the woman’s allegation of having been lulled into a false sense of security was included in the complaint to support its timeliness under the discovery rule, and it was not material to the substantive questions on which liability depended, and thus, evidence of her affirmative consent to surgery was not relevant.


The Supreme Court of Pennsylvania affirmed the appellate court’s reversal of the trial court’s entry of judgment on the jury verdict finding that the podiatrist was not negligent and remanding for a new trial.


See: Brady v. Urbas, 2015 WL 1332593 (Pa., March 25, 2015) (not designated for publication).