Medical Negligence Trial; Evidence of General Risks and Complications; Limiting Instruction

Kirksey v. Children’s Hospital of Pittsburgh of UPMC, et al., 2019 WL 5063370 (Pa. Super. 2019) (unreported), allocatur granted June 23, 2020, appeal docket 18 WAP 2020

In a case of first impression, the Pennsylvania Supreme Court will determine whether in a medical negligence claim, a limiting instruction is warranted when evidence of general risks and complications is admitted to establish the applicable standard of care.

After Kirksey developed Stevens-Johnson Syndrome as a child, he filed a medical malpractice suit against his physician, Gedela, employed by the Children’s Hospital of Pittsburgh of UPMC and University of Pittsburg Physicians based on negligent administration of prescriptions drugs causing the syndrome. When Kirksey was two years old, he started suffering from seizures. Even though he was prescribed a seizure medication, he continued to periodically have seizures. When Kirksey was twelve years old, Gedela became his new physician and reduced his current seizure medication dosage and paired it with another drug. After one month of following Gedela’s treatment plan in 2007, Kirskey was admitted to the emergency room for a body rash and mouth sores and received the diagnosis of Stevens-Johnson Syndrome. As a result, he spent a month in the hospital and continued to suffer from scarring and other effects. After a jury trial, Gedela was found to not have acted negligently. Kirskey filed several post-trial motions, which after argument, were denied. Kirksey filed a timely appeal..

The Superior Court affirmed the trial court’s decision to deny the limiting instruction that the defense of assumption of risk was not applicable because such defense was not introduced as a defense during trial, reasoning:

We cannot find the court abused its discretion in permitting Appellees to introduce evidence of the risk of rash as part of establishing the standard of care. The only evidence pertaining to the risk of rash was introduced to show Gedela’s own awareness of the potential side effects of combining [the second prescription drug] with the [originally prescribed seizure medication]. Neither party introduced evidence regarding [Kirksey’s] consent to treatment.

As such, the court’s rejection of Kirksey’s proposed jury instruction was not an abuse of its discretion. While Kirksey’s proposed instruction was a valid statement of the law, the court appropriately deemed it irrelevant to the case, as no party had introduced evidence regarding consent. This issue is without merit.

Slip Op. at 10-11.

The Supreme Court granted allocatur to determine:

In an issue of first impression and of substantial public importance, whether the Superior Court’s holding directly conflicts with this Honorable Court’s holding in Mitchell v. Shikora, 209 A.3d 307 (Pa. June 18, 2019), which instructs that when evidence of general risks and complications is admitted in a medical negligence claim to establish the applicable standard of care a limiting instruction is warranted as was requested here but was denied by the trial court and glossed over by the Superior Court?