Outpatient Surgery Magazine, providing current information on Surgical Services, Surgical Facility Administration, Outpatient Surgery News and Trends, OR Excellence and more.
Issue link: http://outpatientsurgery.uberflip.com/i/874010
Six months ago, the Superior Court of Pennsylvania determined that even though the patient was informed of the risks and consented to the surgery, the patient's consent had no bearing on whether the sur- geon was negligent. The Superior Court's decision, which effectively reversed a February 2016 trial court verdict, said the trial court erred by allowing the defendants to present evidence at trial — whether a bowel injury was a known risk or complication of the surgery — that should have been inadmissible. Furthermore, the court said the defendants "misled" jurors into believing that informing the patient about the risks and complications established the standard of care, and this ultimately affected the out- come of the trial. In other words, just because the patient knows of the risk of potential complications associated with a particular procedure, it doesn't absolve the surgeon of responsibility if the patient sustains an injury stemming from a breach in the standard of care — in this case, the suit alleges, by failing to identify the bowel before cutting it. The Mitchell v. Shikora case shows that trial courts will continue to consider the admissibility of informed consent in malpractice cases, but whether it will be deemed relevant in a particular case is some- what murky. Given the Superior Court's recent ruling, another jury will soon determine the negligence allegation outlined in the injured patient's claim, this time without the admission of the risks-and-com- plications evidence. Although evidence of known risks and complications may not be admissible in every malpractice case, obtaining consent before sur- gery is imperative for every surgical facility and for every patient. While consent laws may differ from state to state, a patient's medical record should contain a signed consent form that includes, among other things, the names of the patient and the physician performing the procedure, the details of the procedure itself and the known risks S E P T E M B E R 2 0 1 7 • O U T PA T I E N TS U R G E R Y. N E T • 2 7