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Exclusion of defense evidence about the risks and complications of a procedure during a medical negligence trial would effectively impose strict liability on doctors, a defense attorney argued before the Pennsylvania Supreme Court on Tuesday.

John Conti of Dickie, McCamey & Chilcote, who represented an obstetrical and gynecological surgeon, made that argument in Mitchell v. Shikora, which last year resulted in a Superior Court decision that said evidence about the risks and complications of a hysterectomy was prejudicial and should not have been admitted at trial.

Allowing that decision to stand “would be to bar basic medicine and settled science from the courtroom,” Conti told the high court Tuesday afternoon. “There is no other court in the U.S. that has barred this type of evidence.”

The case stems from a 2012 hysterectomy that the defendant, Dr. Evan Shikora, performed on plaintiff Lanette Mitchell. According to court records, midway through the operation, Shikora suspected he had severed Mitchell's bowel, so he abandoned the hysterectomy and consulted a general surgeon, who repaired the bowel. Court records said Shikora nearly cut Mitchell's bowel in half.

Mitchell sued Shikora, alleging negligence, and later sought to exclude evidence about whether bowel injury was a known risk or complication of the surgery. Although the trial court did not allow in evidence related to informed consent, including conversations between Shikora and Mitchell or evidence of Mitchell's consent despite the risks, the jury was allowed to hear about the general risks and complications associated with a laparoscopic surgery.

The jury rendered a defense verdict, and Mitchell subsequently appealed, arguing that the court should not have included any information about the risks and complications.

Last year, a three-judge panel of the Superior Court held that, even though the defendants argued the information was necessary to establish the standard of care, allowing in the evidence was prejudicial to the plaintiffs.

“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 Shikora conformed to the proper standard of care for a laparoscopic hysterectomy and was negligent. Indeed, in deciding to undergo this surgery, Mitchell expects that the treatment will be rendered in accordance with applicable standard of care, regardless of the risks,” Superior Court Judge John Musmanno, who wrote the majority's precedential opinion, said.

Conti, however, told the justices that the evidence could help prove the “essential defense that this injury could have occurred even if we met due care.”

“The concept of risks have been a part of medicine since the first days of medicine,” Conti said. “The plaintiffs want to create a presumption of negligence merely because it occurred.”

The evidence, Conti contended, would go not only toward the standard of care, but also to causation, and he further argued that barring the evidence would mostly affect complex high-risk procedures, which, he said, would have a chilling effect on the most skilled surgeons.

Mitchell's attorney, Stephen Trzcinski of Haddonfield, New Jersey, contended that he was not arguing that evidence of risks and complications should be barred from all cases. However, Trzcinski did not have a ready answer when several justices asked where the line should be drawn. Instead of outlining a standard, he said that, the facts of the case, in which the doctor allegedly performed the procedure without being able to see Mitchell's bowel, meant that the evidence should be barred.

“Not in this case and not on these facts,” he said. “A strong argument can be made that this was unavoidable.”