In a recent decision by the Pennsylvania Supreme Court, Brady v. Urbas, the Court held that a patient can never assume the risk of a negligently performed medical procedure. A patient can consent to the risks of a procedure, but they cannot consent to negligence, so a consent form does not let the physician off the hook if his conduct falls below the standard of care.
Ms. Brady went to Dr. Urbas because of a problem with one of her toes. He performed surgery but it failed to resolve the problem, and she had to undergo three additional surgeries. Dr. Urbas argued that because Ms. Brady had signed an informed consent form listing pain, disfiguration, and the need for additional surgeries as potential side effects, he should be protected from claims that he was negligent. The consent form was introduced at trial and the jury decided that Dr. Urbas was not negligent.
In Pennsylvania, a cause of action for failure to obtain informed consent is completely separate from negligence. A consent form is relevant when a case is based on failure to obtain informed consent, but will (usually) not be relevant when the cause of action is based on negligence. In the Brady v. Urbas case, both the Superior Court and the Supreme Court determined that the jury could have been confused that a consent to surgery was a consent to negligence, and granted a new trial where the consent form will not be admissible.
The attorneys at Lopez McHugh have decades of experience prosecuting medical malpractice cases. There is absolutely no cost for reviewing a potential case.
