Admissibility of Informed Consent in Medical Malpractice Cases

The admissibility of informed consent discussions and forms are a frequent issue in the trial of medical malpractice cases. While this evidence is obviously admissible in cases where the Plaintiff is asserting a claim for lack of informed consent, its admissibility in cases where there is no challenge to the patient’s consent is less clear. In Brady v. Urbas, 80 A.3d 480 (Pa. Super. Ct. 2013), the Superior Court set forth a bright line rule that evidence of informed consent would not be admissible where, no lack of informed consent claim had been asserted. On appeal, the Pennsylvania Supreme Court affirmed the Superior Court decision, however, backed away from the bright line rule announced below. This left open that informed consent information “may” be relevant in a medical malpractice case. Because of the Supreme Court’s holding in Brady, the admissibility of informed consent continues and will continue to be argued to and decided by trial courts in medical malpractice cases.

By way of background, a “consent form” refers to the signed form that authorizes a physician to perform an invasive or surgical procedure. In almost every medical negligence case involving a procedure, the plaintiff-patient’s medical record will contain a signed consent to perform the procedure. These documents usually set forth a brief description of the procedure, the name of the physician, patient name, and may document certain medical complications or risks. The forms used vary widely by institution. Some include only a generic listing of serious medical complications that could conceivably happen in any procedure (i.e., cardiac arrest, death). Others include specific complications that have been known to occur in the specific medical procedure the patient is undergoing, often by way of blank lines that are filled in by the physician or an assistant at the time the consent is signed. Other forms include both preprinted generic risks and other more specific risks that the physician includes based on the specific procedure. Many forms include an acknowledgement that the physician has explained the risks of the procedure. These forms are signed patients, and usually, the physician and a third-party witness.