                             [J-77-2018] [MO: Todd, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                WESTERN DISTRICT


 LANETTE MITCHELL,                                 :   No. 55 WAP 2017
                                                   :
                      Appellee                     :   Appeal from the Order of the Superior
                                                   :   Court entered May 5, 2017 at No. 384
                                                   :   WDA 2016, reversing the Judgment of
               v.                                  :   the Court of Common Pleas of
                                                   :   Allegheny County entered February
                                                   :   22, 2016 at No. GD 13-023436, and
 EVAN SHIKORA, D.O., UNIVERSITY OF                 :   remanding.
 PITTSBURGH PHYSICIANS D/B/A                       :
 WOMANCARE ASSOCIATES, MAGEE                       :   ARGUED: October 23, 2018
 WOMENS HOSPITAL OF UPMC,                          :
                                                   :
                      Appellants                   :


                                 CONCURRING OPINION


JUSTICE WECHT                                          DECIDED: JUNE 18, 2019
       I concur in the result reached by the learned Majority. I write separately to highlight

four areas of concern.

                                              I.

       As the Majority notes, evidence of consent is not relevant to the issue of

negligence, inasmuch as a patient’s consent does not make a physician’s negligence

more or less probable. Maj. Op. at 14-15. On the other hand, evidence of risks and

complications “may aid the jury in determining both the standard of care and whether the

physician’s conduct deviated from the standard of care.” Id. at 16. Importantly, the

Majority recognizes that these are “two discrete categories of evidence.” Id. at 14.

       Trial judges have a critical role to play in ensuring that these categories are not

conflated. To avoid juror confusion, it is imperative that judges carefully police the line
between evidence of consent and evidence of risks and complications. Trial courts

rigorously should monitor the presentation of evidence in order to ensure that irrelevant

consent evidence is not introduced as risk evidence and does not taint the record

concerning the negligence question presented to the jury. Similarly, the trial court must

be meticulous in its instructions to the jury so that the jury clearly understands the

distinction. To that end, the Committee for Proposed Standard Jury Instructions should

review the current model jury instructions in order to assess whether any revisions are

appropriate in light of today’s decision.



                                             II.

       Additionally, I distance myself from the Majority’s invocation of the Brady Court’s

willingness to use the “informed-consent sheet” as evidence of risks and complications.

Maj. Op. at 16 (citing Brady v. Urbas, 111 A.3d 1155, 1161-62 (Pa. 2015)).1 In Brady,

this Court stated that “[e]vidence 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.” Brady, 111 A.3d at 1161-62 (italics

mine). Evidence of risks and complications may be relevant and admissible on the

question of the standard of care. However, no “informed-consent sheet” may be used

lawfully for that purpose.

       First, such evidence increases the likelihood that the jury will receive irrelevant

evidence related to consent. Using the informed-consent sheet to demonstrate the known

risks and complications crosses the line that the trial court vigilantly must guard. Like the


1      The Majority now chooses to interpret Brady as something less than a blessing to
present the “informed-consent sheet” to the jury. Maj. Op. at 15 n.9. Rather than strain
to interpret and harmonize the Brady Court’s language in this manner, I would simply
disavow it.


                               [J-77-2018] [MO: Todd, J.] - 2
proverbial “dash of ink in a can of milk,” the taint of such consent evidence “cannot be

strained out.” See Deeds v. Univ. of Penn. Med. Ctr., 110 A.3d 1009, 1014 (Pa. Super.

2015) (quoting Nigra v. Walsh, 797 A.2d 353, 360 (Pa. Super. 2002) (quoting Lobalzo v.

Varoli, 185 A.2d 557, 561 (Pa. 1962))).

       Second, the introduction of the informed-consent sheet (and the inherent problems

it presents) is unnecessary. As the Majority aptly states, “medical negligence cases

involve a classic confrontation among experts, each testifying as to the appropriate

standard of care.” Maj. Op. at 17. Because there will be expert testimony in almost every

medical malpractice case, expert witnesses can provide ample evidence of the risks and

complications of a given procedure.        Further, the defendant physician can testify

regarding those known risks and complications. There is no reason to taint the jury with

irrelevant consent evidence by introducing the informed-consent sheet when other

methods can provide the jury with evidence of risks and complications that informs the

standard of care, and can do so without improperly infecting the record with the taint of

the patient’s consent.

       Regardless of whether the “informed-consent sheet” is admitted, presented to the

jury, or read from by a witness, use of it is simply too risky and too unnecessary. The

“informed-consent sheet” can play no role when consent is not at issue.



                                            III.

       Related to expert testimony, Mitchell suggested that studies should not be

admissible if they do not distinguish between complications that occurred as a result of

negligence and those that resulted from some other cause. Brief of Appellee at 25-29

(discussing Holley v. Pambianco, 613 S.E.2d 425 (Va. 2005)). In rejecting Mitchell’s

argument, the Majority holds that this type of challenge goes to the weight of the evidence,




                              [J-77-2018] [MO: Todd, J.] - 3
rather than its admissibility. Maj. Op. at 18 n.12. The Majority also would permit a

challenge pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). I agree in both

respects. Parties should not hesitate to request leave to conduct Frye hearings when

appropriate. While a Frye challenge usually relates to the methodology used by the

testifying witness, I see no impediment to challenging the studies underlying that

testimony upon the basis of Frye.



                                              IV.

       Finally, I note that an amicus brief submitted here in support of reversal (a reversal

in which I concur) invoked a report labeling Philadelphia “The City of Unbrotherly Torts”

and placing that city (and presumably the courts situate there) on a list of “Judicial

Hellholes.”2 While amici, like parties, are free (and indeed duty-bound) to engage in

zealous advocacy, it seems imprudent to rely for such advocacy upon unduly caustic or

inflammatory materials that insult or cast aspersions upon the judicial system itself, or

upon its component parts. Those filing briefs as friends of the court should consider this

as they engage in their important work of informing and enriching the perspectives

available to appellate jurists as the latter perform their jurisprudential duties.




2      Brief Amicus Curiae of the American Medical Association, the Pennsylvania
Medical Society, the Pennsylvania Academy of Ophthalmology, the Pennsylvania
Academy of Otolaryngology - Head and Neck Surgery, the Pennsylvania Academy of
Dermatology and Dermatologic Surgery, the Pennsylvania College of Emergency
Physicians, the Pennsylvania Neurosurgical Society, and the Robert H. Ivy Pennsylvania
Plastic Surgery Society at 14 (citing American Tort Reform Association’s December 15,
2017 “Judicial Hellholes” Report).


                               [J-77-2018] [MO: Todd, J.] - 4
