John O'Brien Mar. 26, 2015, 1:23pm


HARRISBURG – Consent forms should not have been entered as evidence in a woman’s medical negligence case against her podiatrist, the state Supreme Court has ruled.

The court ruled on March 25 in favor of Maria Brady, affirming an earlier ruling by the Superior Court that said whether Brady was informed of possible side effects from a toe-shortening procedure was irrelevant as to whether Dr. William Urbas breached the standard of care.

“Evidence of the patient’s consent also tends to confuse the issue because, as the Virginia Supreme Court noted, the jury might reason that the patient’s consent to the procedure implies consent to the resultant injury… and thereby lose sight of the central question pertaining to whether the defendant’s actions conformed to the governing standard of care,” Chief Justice Thomas Saylor wrote.

“The jury, for its part, ultimately focused its attention on what (Brady) ‘had agreed to’ and, shortly thereafter, returned a verdict finding that Dr. Urbas was not negligent.

“There is a substantial possibility, then, that the jury’s verdict rested on an improper consideration.”

Brady suffered from toe deformities in both feet. Urbas successfully treated the problems on her left foot with surgery before turning his attention to her right foot from 2008-10.

On the right foot, her second toe was too long and caused pain when she wore shoes.

Urbas explained the risks of the surgery he planned to perform in 2008, and Brady signed a consent form. Urbas took one centimeter of bone out of the toe in an effort to straighten it.

The surgery did not work, though, as internal tissues contracted and pulled the toe upward again.

Three more surgeries happened, and Brady’s pain was never alleviated.

Another podiatrist ultimately performed a bone-graft to return the toe to 90 percent of its original length, reducing Brady’s pain.

Shortly thereafter, Brady filed a negligence lawsuit against Urbas over the final three surgeries.

Urbas failed to determine the cause of her original condition and recommended procedures that were counter-indicated, she said.

The court noted that Brady did not file a claim for lack of informed consent.

In her Delaware County trial, Urbas was allowed to introduce the consent forms as evidence of Brady’s state of mind at the time of the surgeries.

Brady argued the probative value of the evidence was outweighed by the unfair prejudice and confusion of the issues it would cause the jury.

On appeal, the Superior Court agreed with Brady and remanded the case.

The lawsuit drew the attention of the Pennsylvania Association for Justice, the state’s trial lawyer group.

It filed an amicus brief urging the Supreme Court to side with Brady.

“(T)he 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,” Saylor wrote.

“Put differently, there is no assumption-of-the-risk defense available to a defendant physician which would vitiate his duty to provide treatment according to the ordinary standard of care.

“The patient’s actual, affirmative consent, therefore, is irrelevant to the question of negligence.”

From the Pennsylvania Record: Reach editor John O’Brien at jobrienwv@gmail.com.

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