“One way or another, I’m gonna find ya, I’m gonna getcha getcha getcha getcha…” So begins Debbie Harry’s hit song “One way or another.” It started me thinking about the different causes of action we face as orthodontic practitioners. What are the different ways we can be placed in legal jeopardy? One way is to commit a criminal act such as insurance fraud or sexual assault. Another way might be to engage in administrative failures: not following the rules and regulations promulgated by our respective state boards of dentistry or state statutes pertaining to health care providers. Finally, there are many civil acts such as slander or libel, medical malpractice, premises liability, and so on. You might think that the most common tort that potentially exposes us to liability is medical (dental) malpractice; if that is true, then a really close second is lack of informed consent. When one is studying the law, one is told that assault and battery go together hand in hand. In reality, so it is with medical malpractice (practicing beneath an accepted standard of care) and lack of informed consent—they too go hand in hand. So usually, when we are sued, the plaintiff claims both negligent treatment and lack of informed consent. That way, they hope that one way or another, they can getcha, getcha, getcha.

However, one needs to appreciate that these 2 causes of action, legal theories upon which you can be sued, are totally separate but equally dangerous. You can have practiced well within the standard of care and still be found liable for not having obtained a patient’s informed consent. Conversely, you can have obtained the patient’s informed consent but still be found liable for having breached a given standard of care that resulted in an injury. This is what Brady v Urbas , 80 A.3d 480 (Pa Superior Ct, 2013), is all about.

The facts of this case are straightforward. The plaintiff had a podiatric condition regarding her left foot that was successfully treated by the defendant in 2007. A year later, she sought treatment for a different condition concerning a toe on her right foot. The defendant performed surgery that was unsuccessful. Surgery was reperformed 10, 16, and 22 months later, but all of these interventions were also unsuccessful. The plaintiff sued, claiming that the surgeries were negligently performed, and as a result she was left in extreme and constant pain. During the discovery phase of the litigation, at the defendant’s deposition of the plaintiff, he questioned her regarding whether she had been informed about the risks of the surgery, whether she gave her informed consent to the procedures in question, and so on.

Before the trial, the plaintiff made a motion to preclude the defendant from delving into the entire issue of informed consent. The motion went something like this. Since I am only suing the doctor for rendering negligent treatment that fell below the standard of care, anything he may have discussed with me relative to the risks of surgery is not relevant as to whether he did or did not deviate from the standard of care. In addition, any evidence regarding my knowledge of the possible risks of surgery or negative consequences resulting therefrom are not defenses to claims of professional negligence and thus should not be allowed to be delved into because the probative value of any such testimony is outweighed by the danger of unduly prejudicing the jury through presenting misleading or confusing issues and facts.

The defendant doctor responded something along these lines. Look, I’m not presenting the informed-consent evidence to prove that I practiced within the standard of care. I’m offering it to show that she was aware of the risks, alternatives, and potential complications because they go directly to her credibility as a witness and to show her state of mind at the time of the surgeries. Also, my discussions with the plaintiff about the risks, alternatives, or complications related to the surgeries aren’t prejudicial at all because the mere fact that the surgery was unsuccessful is not evidence that malpractice occurred. My informed consent discussions with her about the risks of pain, swelling, recurrence, nerve damage, or permanent deformities, and her acknowledgment of such, once again go to prove her credibility, an area that I am allowed to explore.

Not only was the plaintiff’s motion to preclude the informed-consent evidence denied, but also at the conclusion of the trial, when the jury members went to deliberate, they were given copies of the informed consent forms signed by the plaintiff. It should not come as a surprise that the jury found for the defendant and that the plaintiff appealed the verdict. The issue on appeal was essentially whether the court erred by allowing introduction of the informed consent-related material in a case founded solely on a theory of negligent treatment.

Upon reviewing the entire trial record, the appellate court noted that the trial court found the consent forms to be relevant. The trial court’s reasoning was that all risks and complications associated with any treatment rendered must be relevant in determining whether there was negligence regarding the treatment. In addition, the probative value of such evidence far outweighs any potential prejudice that might be construed. The appellate court disagreed with both of these findings in its decision by first stating the rule of evidence governing relevancy.

Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.…Although relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. (cit. omit)

The court quoted from a case decided in another jurisdiction, noting that whereas that decision was not binding, it could not help but be influenced by the following:

The plaintiff’s awareness of the general risks of surgery is not a defense available to the defendant physician against the claim of a deviation from the standard of care. While the plaintiff or any other patient may consent to risks, she does not consent to negligence. Knowledge by the trier of fact of informed consent to risk, where lack of informed consent is not an issue, does not help the plaintiff prove negligence. Nor does it help the defendant show he was not negligent. In such a case, the admission of evidence concerning a plaintiff’s consent could only serve to confuse the jury because the jury could conclude, contrary to the law and the evidence, that consent to the surgery was tantamount to consent to the injury which resulted from that surgery. In effect, the jury could conclude that consent amounted to a waiver, which is plainly wrong. (cit. omit)

In a medical malpractice action, the plaintiff must prove that (1) there was a duty on the part of the practitioner to adhere to a given standard of care, (2) the treatment rendered breached that standard of care, (3) the breach of the duty was the direct and proximate cause of (4) the injuries sustained as a result of the breach. The appellate court noted that the plaintiff’s

consent to her surgeries and knowledge of the risks associated with those surgeries ha[s] no tendency to make the existence of any fact of consequence to the determination of this action more or less probable than it would be without this evidence. In other words, evidence of informed consent is irrelevant in a medical malpractice case. Moreover, assuming arguendo that such evidence had some marginal relevance in this case, the evidence clearly could have misled or confused the jury by leading it to believe that [the plaintiff’s] injuries simply were a risk of the surgeries and that she accepted such risks, regardless of whether [the defendant’s] negligence caused the risks to occur.

Put another way, the court said that although the plaintiff signed informed consent forms relating to the potential risks, consequences, and limitations related to the surgery, she never signed a consent form that would allow the defendant to render negligent treatment. The court concluded that the evidence of the plaintiff’s informed consent regarding the surgeries was inadmissible because of lack of relevancy and therefore was an abuse of discretion by the trial court. In addition, the appellate court found that the trial court should not have given the jury copies of the informed consent form because it was misleading, confusing, and unfairly prejudicial. The verdict of the trial court was overturned, and the case was remanded for a new trial.