Co-Authored by Attorney Brendan Lupetin
Any person who has had surgery probably remembers signing a consent form or consent to surgery form before surgery. The consent form is also signed by the surgeon and contains a statement that the patient understands there are risks associated with the surgery, such as accidental injury to surrounding structures, bleeding, nerve damage, or even, death.
Many people we talk with have been mistakenly led to believe that if somebody signs a consent to surgery form before an operation, that they have waived their right to file a lawsuit for any injury caused during the surgery. People commonly ask, “how can I file a medical malpractice lawsuit against my doctor if I signed a form stating that I understood the risks of surgery and possible complications?”
Defendants in medical malpractice lawsuits feed upon this misperception- a misperception created, in large part, by the healthcare industry. During the trial of medical malpractice cases, which are different from informed consent cases, defendant doctors and hospitals often attempt to show the jury a copy of a consent form signed by the patient before surgery. Their goal is to persuade the jury that since the injury the plaintiff suffered is a risk of the surgery, the surgeon did not act negligently. In addition, defendants improperly attempt to persuade juries that plaintiffs do not have a right to recover for injuries they understood were risks of surgery. Attorney advocates representing medical malpractice victims fight to exclude consent forms from being presented as evidence before the jury. This is done because consent forms are irrelevant to claims of medical malpractice and serve only to bias juries in favor of defendants.
The Pennsylvania Superior Court has finally spoken on the issue and determined that evidence of a patient’s consent to surgery is not admissible to prove negligence. In Brady v. Urbas, 2013 Pa.Super. 296 (Pa. Super. Ct. 2013), the Pennsylvania Superior Court reversed a trial court’s decision to admit evidence about the contents of consent forms signed by the plaintiff before surgeries on her foot or her knowledge of the risks associated with surgeries. In support of its determination, the Pennsylvania Superior Court offered the same reasoning Plaintiff’s attorneys rely upon when fighting this battle in the trenches of the courtroom: while a patient may consent to risks, she does not consent to negligence.
In every medical malpractice action, the plaintiff must establish that the defendant physician or health care provider breached a duty of care owed to the patient and that the breach was the proximate cause of the harm suffered. Likewise, in a medical malpractice case involving surgery, a jury must determine whether the surgery was performed in accordance with standards established in the defendant’s profession for the care at issue. Whether or not a patient consented to the risks of surgery has nothing to do with whether a surgeon performed a surgery with the appropriate level of care. The court in Urbas recognized that the plaintiff’s consent to surgery and knowledge of the risk associated with those surgeries was irrelevant to the issue of whether the defendant doctor breached the duty of care. In addition, the Court concluded that even if the plaintiff’s consent to surgeries had some marginal relevance to the case, the evidence was likely to mislead or confuse the jury to believe the plaintiff accepted the injury as a risk of surgery, regardless of whether her doctor made it more likely such risks would occur. Because the evidence was irrelevant to a medical malpractice action and had the potential to confuse the jury, it was deemed inadmissible.
So, it is important for the safety of the community to remember that a patient cannot consent to suffer the consequences of negligence. In Pennsylvania, even when a patient signs a form acknowledging the risks of surgery, that patient does not waive the right to pursue a potential claim arising from negligent and careless medical treatment.