Pennsylvania Supreme Court to decide important medical malpractice case

The issue is whether a jury should hear evidence of known complications of a medical procedure when the issue is medical negligence.

Every surgical procedure has risks and everyone knows that. Some complications can happen even if the surgeon performs the procedure perfectly and according to the accepted standard of care. The same complications could still happen when the surgeon performs the procedure negligently or in breach of the prevailing standard of care.

So, if a complication could happen with or without medical negligence, should the jury hear evidence about known risks and complications if the issue before them is whether the surgeon strayed from the standard of care?

The case at hand

This is the issue pending before the Pennsylvania Supreme Court in Mitchell v. Shikora, a case about a known complication of a laparoscopic hysterectomy - perforation of the bowel. At the beginning of a hysterectomy, Dr. Shikora realized that he had cut the patient Mitchell's bowel and had another surgeon repair the damage.

Mitchell sued Shikora for medical malpractice for the injury. At trial, Mitchell objected to testimony that perforation is a known risk because the issue was instead whether the doctor adhered to the accepted standard of care, but the judge allowed the jury to hear the information. The judgment was for the defendant doctor.

On appeal, the Superior Court agreed with the plaintiff and sent the case back for a new trial without evidence of known complications of the surgical procedure. It explained: "The fact that one of the risks and complications of the laparoscopic hysterectomy, i.e., the perforation of the bowel, was the injury suffered by Mitchell does not make it more or less probable that Dr. Shikora conformed to the proper standard of care for a laparoscopic hysterectomy and was negligent."

The doctor appealed this order and the Supreme Court has agreed to hear it.

The arguments

The case is receiving much attention from both patients' advocates on the one hand and the medical community on the other. In a friend-of-the-court brief, trial lawyers' organizations support the plaintiff's effort to keep evidence of known surgical risks away from the jury when its only issue is whether the doctor was negligent. It argues that it can be confusing and misleading for the jury to learn about the known risks.

It states, "Generic and unsubstantiated claims that an injury could have occurred in the absence of negligence, are not relevant to the determination of whether a medical professional's care of an injured patient fell below the standard of care in a medical negligence case."

The medical community disagrees. According to an article in AMA Wire, its position is that without evidence of known surgical risks being presented to the jury, a doctor could lose a medical negligence claim even if he or she was not negligent, and a known complication occurred.

Attorney George Gerasimowicz Jr. of the Ches-Mont Personal Injury Law Center, LLC, in Pottstown represents victims of medical negligence in the tri-county area. We will watch this case with keen anticipation since it will have significant impact on our clients' cases.