J-A29032-16

                                2017 PA Super 134

LANETTE MITCHELL,                          :        IN THE SUPERIOR COURT OF
                                           :              PENNSYLVANIA
                    Appellant              :
                                           :
              v.                           :
                                           :
EVAN SHIKORA, D.O., UNIVERSITY OF          :
PITTSBURGH PHYSICIANS d/b/a                :
WOMANCARE ASSOCIATES, MAGEE                :
WOMEN'S HOSPITAL OF UPMC                   :            No. 384 WDA 2016

              Appeal from the Judgment entered February 22, 2016
               in the Court of Common Pleas of Allegheny County,
                       Civil Division, No(s): GD 13-023436

BEFORE: DUBOW, MOULTON and MUSMANNO, JJ.

OPINION BY MUSMANNO, J.:                                 FILED MAY 5, 2017

         Lanette Mitchell (“Mitchell”) appeals from the Judgment entered in

favor of Evan Shikora, D.O. (“Dr. Shikora”), University of Pittsburgh

Physicians d/b/a Womancare Associates, Magee Women’s Hospital of UPMC

(“Magee”) (collectively “Defendants”).    We reverse and remand for a new

trial.

         On May 16, 2012, Dr. Shikora, an obstetrical and gynecological

surgeon, and Karyn Hansen, M.D. (“Dr. Hansen”), performed a hysterectomy

on Mitchell at Magee.     After Mitchell was administered general anesthesia,

Dr. Shikora, using an open laparoscopic technique, made an incision in

Mitchell’s abdomen.      While opening the sheath of the peritoneum, Dr.

Shikora smelled fecal matter and suspected he had severed Mitchell’s bowel.

Dr. Shikora abandoned the hysterectomy and consulted a general surgeon,
J-A29032-16


Dr. Anita Courcoulas (“Dr. Courcoulas”). Dr. Courcoulas repaired the bowel,

which had been severed nearly in half, by performing a diverting loop

ileostomy. Following the surgery, Mitchell was required to wear a colostomy

bag for a short time.

      On December 16, 2013, Mitchell filed a medical negligence action

against Defendants.     Subsequently, the parties filed numerous pleadings.

On January 25, 2016, Mitchell filed a Motion in Limine, seeking to exclude

consent and risk/complications evidence at trial.     The trial court granted

Mitchell’s Motion as to the lack of consent, as she had not raised such a

claim in her action. However, as to the whether a bowel injury was a known

risk or complication of the surgery, the trial court denied Mitchell’s Motion

and allowed such evidence to be presented at trial.

      The case proceeded to a jury trial.    On February 5, 2016, the jury

returned a verdict in favor of Defendants. Mitchell filed a Motion for Post-

Trial Relief, seeking a new trial excluding the risk/complications evidence.

The trial court denied the Motion.       Thereafter, the trial court entered

Judgment in favor of Defendants.     Mitchell filed a timely Notice of Appeal

and a court-ordered Pennsylvania Rule of Appellate Procedure 1925(b)

Concise Statement.

      On appeal, Mitchell raises the following question for our review:

      Whether the trial court erred by allowing [D]efendants to admit
      evidence of the “known risks and complications” of a surgical
      procedure[,] in a medical malpractice case that did not involve
      informed consent-related claims, and such evidence was,


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J-A29032-16


      therefore, irrelevant, unfairly prejudicial, and misled jurors on an
      issue that directly controlled the outcome of the case, thereby
      warranting a new trial?

Brief for Appellant at 4.

      “[W]hen reviewing the denial of a motion for new trial, we must

determine if the trial court committed an abuse of discretion or error of law

that controlled the outcome of the case.”         Fletcher–Harlee Corp. v.

Szymanski, 936 A.2d 87, 93 (Pa. Super. 2007) (citation omitted). Further,

“[w]hen we review a trial court ruling on admission of evidence, we must

acknowledge that decisions on admissibility are within the sound discretion

of the trial court and will not be overturned absent an abuse of discretion or

misapplication of law.”     Phillips v. Lock, 86 A.3d 906, 920 (Pa. Super.

2014) (citation omitted). “In addition, for a ruling on evidence to constitute

reversible error, it must have been harmful or prejudicial to the complaining

party.” Id. (citation omitted).

      Mitchell contends that “in a medical negligence action where there are

no claims for informed consent, evidence related to the risks and

complications of surgery as communicated to the patient is generally

excluded as irrelevant.” Brief for Appellant at 20. Mitchell argues that such

evidence is inadmissible because there is no assumption of risk defense in a

medical negligence action, and the evidence is irrelevant as to the question

of negligence. Id. at 21, 24; see also id. at 22-23 (wherein Mitchell points

out that evidence of risks and complications is relevant in an informed



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J-A29032-16


consent action, not a medical negligence action); id. at 28-29 (noting that

Mitchell did not raise a res ipsa loquitur claim).     Mitchell claims that the

admission of risks and complications evidence improperly allowed the jury to

consider her consent to undergo the surgery to be the same as her consent

to the risks and complications. Id. at 24-25.

      Mitchell further asserts that she did not allege a negligence claim

based on an alleged breach of the standard of care for failure to inform her

of the risks of the surgery. Id. at 22-23, 26-27. Mitchell argues that in her

negligence action, she claimed that Dr. Shikora breached his duty of care by

failing to identify her bowel prior to cutting it, and that evidence that a bowel

injury was a known risk or complication of the surgery was not relevant to

whether Dr. Shikora met the standard of care. Id. at 26-27. Mitchell cites

the testimony of Defendants’ expert that the bowel injury played no role in

determining whether Dr. Shikora acted negligently, and thus asserts that the

risks and complications evidence did not aid the jury in determining whether

Defendants acted negligently.    Id. at 27-28; see also id. at 29.       Mitchell

contends that because the admission of the risks and complications evidence

was unfairly prejudicial and controlled the outcome of the case, a new trial is

required. Id. at 29-31.

            Evidence is relevant if it has “any tendency to make a fact
      [of consequence] more or less probable than it would be without
      the evidence.” Pa.R.E. 401. Irrelevant evidence is inadmissible,
      and relevant evidence “is admissible except as otherwise
      provided by law.” Pa.R.E. 402. The “except as otherwise
      provided by law” qualifier includes the principle that relevant


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J-A29032-16


     evidence may be excluded “if its probative value is outweighed
     by a danger of one or more of the following: unfair prejudice,
     confusing the issues, misleading the jury, undue delay, wasting
     time, or needlessly presenting cumulative evidence.” Pa.R.E.
     403.

Brady v. Urbas, 111 A.3d 1155, 1161 (Pa. 2015).

     Where, as here, the plaintiff has only raised a medical negligence

claim, our Supreme Court set forth the relevant law with regard to the

admission of known risks and complications evidence as follows:

     To prevail on a claim of medical negligence, the plaintiff must
     prove that the defendant’s treatment fell below the appropriate
     standard of care. We therefore consider whether informed-
     consent evidence is probative of that question. In undertaking
     this inquiry, it is important to recognize that such information is
     multifaceted:      it reflects the doctor’s awareness of possible
     complications, the fact that the doctor discussed them with the
     patient, and the patient’s decision to go forward with treatment
     notwithstanding the risks.

     Some of this information may be relevant to the question of
     negligence if, for example, the standard of care requires that the
     doctor discuss certain risks with the patient. Evidence about the
     risks of surgical procedures, in the form of either testimony or a
     list of such risks as they appear on an informed-consent sheet,
     may also be relevant in establishing the standard of care. In this
     regard, we note that the threshold for relevance is low due to
     the liberal “any tendency” prerequisite. Accordingly, we decline
     … to hold that all aspects of informed-consent information are
     always irrelevant in a medical malpractice case.

     Still, the 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


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J-A29032-16


      negligence. Moreover, … assent to treatment does not amount
      to consent to negligence, regardless of the enumerated risks and
      complications of which the patient was made aware. That being
      the case, in a trial on a malpractice complaint that only asserts
      negligence, and not lack of informed consent, evidence that a
      patient agreed to go forward with the operation in spite of the
      risks of which she was informed is irrelevant and should be
      excluded.

Id. at 1161–63 (citations, footnotes, emphasis, and some quotation marks

omitted).

      As noted above, and contrary to some of Mitchell’s claims, the trial

court excluded all evidence regarding informed consent, including, inter alia,

conversations between Dr. Shikora and Mitchell about the surgical risks and

complications, and evidence of Mitchell’s consent to proceed with the

surgery despite the risks and complications.        However, the trial court

allowed the introduction of testimony related to the general risks and

complications of a laparoscopic hysterectomy.      Thus, we must determine

whether Brady allows the introduction of such testimony under the facts of

this case.1

      Here, Mitchell’s medical expert, Vadim Morozov, M.D. (“Dr. Morozov”),

testified about the anatomy of the abdomen, performing a proper and safe


1
  Defendants cite to a host of Pennsylvania cases wherein general testimony
regarding risks and complications was admitted into evidence. Brief for
Appellees at 30-31; see also id. at 32-35 (wherein Defendants cite to cases
outside this jurisdiction to support their claim that the evidence was
admissible). While risks and complications evidence may be relevant in
establishing the standard of care, the determination as to the admissibility of
such evidence is conducted on a case-by-case basis. See Brady, 111 A.3d
at 1161.


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J-A29032-16


laparoscopic hysterectomy, and provided his opinion that cutting into the

colon without proper identification violated the relevant standard of care.

N.T., 2/1/16, at 163-85. With regard to complications, Dr. Morozov stated

the following:

      [Mitchell]: Doctor, I want to talk to you very briefly about
      something called a complication[,] if we could?

      [Dr. Morozov]: Sure.

      [Mitchell]: The failure to identify [] Mitchell’s mid descending
      bowel and cutting into it, is that a complication?

      [Dr. Morozov]: So the failure to identify the organ is not a
      complication, but rather the failure to identify the appropriate
      anatomy.

      [Mitchell]: So, is that a breach of the standard of care doctor?

      [Dr. Morozov]: In my opinion, yes.

      …

      [Defendants]: Tell me if you agree with this, doctor. The
      majority of complications in laparoscopic surgery occur during
      the entry of the instruments into the abdomen used to create
      pneumoperitoneum?

      [Dr. Morozov]: That’s probably [a] correct statement.

      [Defendants]: The majority of complications occur at that point
      in the procedure?

      [Dr. Morozov]: Yes. Again, yes.

Id. at 203, 228. Dr. Morozov then stated that numerous complications may

arise out of a laparoscopic hysterectomy and that complications may occur

in the absence of negligence. Id. at 231-32.



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J-A29032-16


      Defendants’ expert, Charles Ascher-Walsh, M.D. (“Dr. Ascher-Walsh”),

testified that Dr. Shikora and Dr. Hansen met the standard of care in

performing the hysterectomy. N.T., 2/5/16, at 694, 701-02; see also id. at

721 (wherein Dr. Ascher-Walsh testified that the injury suffered by Mitchell

was “unavoidable”). With regard to complications, Dr. Ascher-Walsh stated

the following:

      [Mitchell]: You talk a lot about complications in your report,
      Doctor. So I want to talk about surgical complications with you,
      if I might for just a little bit. Would that be okay?

      [Dr. Ascher-Walsh]: Of course.

      …

      [Mitchell]: Okay. Now, your opinion in this case is that []
      Mitchell’s colon injury was a complication of surgery; am I right?

      [Dr. Ascher-Walsh]: Correct.

      [Mitchell] And, I think you said that colon injuries can happen
      with the surgery in the best of care?

      [Dr. Ascher-Walsh]: Correct.

      [Mitchell] And in injuries to either the large or small bowel,
      correct?

      [Dr. Ascher-Walsh]: Correct.

      [Mitchell]: Because there’s always something behind there?

      [Dr. Ascher-Walsh]: Correct.

      [Mitchell]: Despite the best of care, right?

      [Dr. Ascher-Walsh]: Yes.




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J-A29032-16


      [Mitchell]: You would also agree merely because a patient
      suffers a colon injury, that doesn’t really tell us whether the
      doctor was negligent, does it?

      [Dr. Ascher-Walsh]: That’s correct.

      [Mitchell]: It also doesn’t tell you whether he wasn’t negligent,
      does it? (No verbal response.)

      [Mitchell]: For example, if Dr. Hansen and Dr. Shikora had
      performed this surgery blindfolded, you would agree that the
      surgeons could have cut [] Mitchell’s bowel. Correct?

      [Dr. Ascher-Walsh]: Sure.

      [Mitchell]: We can both agree that had they performed this
      surgery blindfolded, certainly they would have been negligent?

      [Dr. Ascher-Walsh]: Sure.

      [Mitchell]: Both situations, whether the best of care or most
      dangerous care was used, both of those situations would result
      in the bowel injury, correct?

      [Dr. Ascher-Walsh]: Correct.

      [Mitchell]: So, in fact, the injury, the bowel injury itself, doesn’t
      really tell us [] much about the standard of care, does it?

      [Dr. Ascher-Walsh]: That’s correct.

Id. at 704, 706-07; see also N.T., 1/19/16, at 41 (wherein Dr. Courcoulas,

the surgeon that repaired Mitchell’s bowel, stated that a bowel injury is a

complication of laparoscopic surgeries).

      Here, while evidence of risks and complications of a surgical procedure

may be admissible to establish the relevant standard of care, see Brady,

111 A.3d at 1161-62, in this case, such evidence was irrelevant in

determining whether Defendants, specifically Dr. Shikora, acted within the


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J-A29032-16


applicable standard of care. Acknowledging a liberal threshold to determine

the relevancy of such evidence, we nevertheless emphasize that the

evidence must be probative of whether Defendants’ treatment of Mitchell fell

below the standard of care. See id. at 1162. 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.       See N.T., 2/5/16, at 707.

Indeed, in deciding to undergo this surgery, Mitchell expects that the

treatment will be rendered in accordance with the applicable standard of

care, regardless of the risks. See Brady, 111 A.3d at 1162.

      Moreover, the evidence would tend to mislead and/or confuse the jury

by leading it to believe that Mitchell’s injuries were simply the result of the

risks and complications of the surgery.      See Brady, 111 A.3d at 1163

(noting that evidence of risks and complications could confuse the jury and

cause it to “lose sight of the central question pertaining to whether

defendant’s actions conformed to the governing standard of care.”). In point

of fact, this evidence was central to Defendants’ defense, as demonstrated

by their opening and closing statements.     See, e.g., N.T., 2/5/16, at 737

(stating during Defendants’ closing argument that “complications are a part

of medicine and a part of life. … [C]omplications can occur despite the best

possible care.”); id. at 745 (noting that Dr. Ascher-Walsh told you



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J-A29032-16


complications are often unavoidable in surgery.         Dr. Shikora should be

judged by his management of the complication, which was excellent, and Dr.

Ascher-Walsh … said complications can – it can happen. …          Unfortunately,

the complication can happen. It is not negligence.”); N.T., 2/1/16, at 120

(stating during Defendants’ opening statement that “no one will dispute she

had a medical complication that was both unfortunate and unexpected, but –

it is a big but – that complication was not the result of medical negligence,

the care was not unreasonable.”); id. at 114 (noting that “[t]he complication

we intend to show was both unpredictable and unfortunately unavoidable.”);

id. at 115 (stating that “[y]ou all know either from your own experience or

from your common sense that complications can occur in medicine. Indeed,

complications or setbacks or problems or adversity [is] not the only part of

medicine….”). Thus, the risks and complications evidence was immaterial to

the issue of whether Defendants’ treatment of Mitchell met the standard of

care.2 Accordingly, we hold that the evidence was inadmissible, and that the

failure to grant Mitchell’s Post-Trial Motion on this issue was error by the trial



2
   Defendants argue that the admission of the risks and complication
evidence was relevant to the standard of care, aided the jury in
understanding the procedure at issue, and prevented the jury from inferring
causation from the occurrence of the injury, rather than the conduct of
Defendants. Brief for Appellees at 28-32, 36-37.      While a jury may not
infer causation merely from the occurrence of an injury, a jury also may not
conclude that the risks and complications of a particular surgery
demonstrated the absence of any negligence. Thus, the risks and
complications evidence in no way established that Defendants were not
negligent or that Mitchell proved the negligence.


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J-A29032-16


court.3 Based upon the foregoing, we reverse the Judgment entered in favor

of Defendants, and conclude that a new trial without the admission of risks

and complications evidence is required.

      Judgment reversed.     Case remanded for a new trial.       Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/5/2017




3
  Based upon our resolution, we need not consider Mitchell’s res ipsa loquitur
claim.


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