Years ago, a family friend hired a contractor to do some basic work around the house, and paid half the cost as a deposit. Mid-way through, it became clear the contractor was doing a terrible job and that everything would need to be redone, so they terminated the agreement and brought in someone else. The contractor sued my friend in small claims court, asking for the balance of the contract. I told the friend to counterclaim for the initial deposit, and to bring to the hearing evidence of the faulty work.
At the hearing, my friend showed a short video of what happened when they carefully put a ball on the crooked shelf the contractor installed: it swiftly rolled off. The judge turned to the contractor, who exclaimed, “they never said they wanted it to be level!”
I thought of that case while reading the Pennsylvania Supreme Court’s recent opinion in Brady v. Urbas, a medical malpractice case. In every malpractice case I’ve tried, the lawyer for the defendant doctor tries to make a big fuss about the “risks of the procedure” that were disclosed to the patient. The argument is irrelevant and prejudicial: obviously, the patient didn’t consent to the risk of negligent treatment; rather, the patient consented to the risks of the procedure if it was done properly.
But the defendants always raise it anyway, mostly to confuse the jury into thinking that the patient accepted this “risk” when they went in. It’s no different from a contractor claiming a homeowner didn’t ask for level shelves, but, sadly, courts routinely allow this stealth ‘assumption of risk’ argument to pervade malpractice trials.
The Brady case involved a foot surgery that was allegedly performed negligently, resulting in constant pain and the plaintiff’s toe being shortened considerably. At the trial:
[T]he defense questioned Appellee at length about her having signed the consent forms [detailing known risks of a properly performed surgery], elicited testimony from Dr. Urbas on the topic, and made references to the fact of Appellee’s consent during its summation – all in an effort to rebut the allegation of negligence. See N.T., Nov. 9, 2012, at 204 (reflecting defense counsel’s argument to the jury that Dr. Urbas was not negligent because he had listed a particular risk on one of the consent forms and talked to Appellee about it).
Unsurprisingly, when the jury went to deliberate, they asked to see the consent forms, because, they said, they wanted to see what the patient “had agreed to.” Shortly after getting the forms, they returned with a defense verdict. It seems the jury believed that, because the doctor had told the patient that even an appropriately performed operation came with certain risks, including the possibility of a shortened toe and lingering pain, that meant the patient had assumed the risk of the doctor causing the complications through malpractice.
That’s no more fair than a contractor claiming that a homeowner has to ask for level shelves. Does a patient have to write on their forms, “I expect the doctor to do their job?”
As the Pennsylvania Supreme Court explained:
[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. 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.
Indeed. This same issue was decided more than a decade ago in Virginia in Wright v. Kaye, 593 S.E.2d 307, 317 (Va. 2004), and nearly eight years ago in Connecticut in Hayes v. Camel, 927 A. 2d 880 (Conn. 2007), and recently in several intermediate appellate courts, like Warren v. Imperia, 252 Or.App. 272, 287 P.3d 1128 (2012) and Schwartz v. Johnson, 206 Md.App. 458, 49 A.3d 359, 371-75 (Md.Ct.Spec.App. 2012). Last year the Delaware Supreme Court joined them with Baird v. Owczarek, 93 A. 3d 1222 (Del. 2014). Every one of those courts held that this stealth “assumption of risk” argument was irrelevant and prejudicial.
Thanks to Brady v. Urbas, that bogus “defense” has come to an end in Pennsylvania, too. In Brady, the Pennsylvania Supreme Court held “that evidence that a patient affirmatively consented to treatment after being informed of the risks of that treatment is generally irrelevant to a cause of action sounding in medical negligence.” It’s not quite as helpful as the Superior Court’s opinion, 80 A.3d 480 (Pa. Super. 2013), which established a per se rule prohibiting that evidence, but it’s still a good guideline. Unless a patient brings a claim for “informed consent,” i.e. that the doctor failed to detail to them the risks of the procedure, there’s “generally” no reason to bring that evidence in.