Evidence of General Risks and Complications in a Medical Negligence Claim

Mitchell v. Shikora, D.O., University of Pittsburgh Physicians D/B/A, Womancare Associates, Magee Women’s Hospital of UPMC, 161 A.3d 970, allocatur granted Nov. 20, 2017, appeal docket 55 WAP 2017

On May 16, 2016, Dr. Shikora was performing a hysterectomy on Ms. Mitchell when he sliced open her bowel.  Ms. Mitchell sued Dr. Shikora alleging he was negligent in performing the surgery and slicing her bowel.  Denying Ms. Mitchell’s Motion in Limine, the trial court allowed Dr. Shikora to present evidence as to the whether a bowel injury was a known risk or complication of the surgery.  The jury did not find Dr. Shikora negligent.  Ms. Mitchell filed a post-trial motion seeking a new trial excluding evidence of the known risks and complications of the surgery, which the trial court denied.

On appeal, the Superior Court reversed and remanded for a new trial excluding the risk and complication evidence.  Extending Brady v. Urbas, 111 A.3d 1155 (Pa. 2015), which held informed consent evidence is not relevant to whether a doctor acted within the applicable standard of care where, as here, no failure to warn or consent claims are raised, the Superior Court held that risks and complications evidence is irrelevant in determining whether a doctor acted within applicable the standard of care.  The court reasoned that just because the injury to the bowel was one of the risks of the surgery does not make it more or less probable that Dr. Shikora was negligent.

The Supreme Court of Pennsylvania granted allocator to determine:

Whether the Superior Court’s holding directly conflicts with this Honorable Court’s holdings in Brady v. Urbas, 111 A.3d 1155 (Pa. 2015), which permits evidence of general risks and complications in a medical negligence claim?

For more information, contact Kevin McKeon or Dennis Whitaker.