A Major Judicial Victory Achieved!

Led by PAOrtho and PAMED, all physicians gained a major judicial victory as the Pennsylvania Supreme Court issued its ruling in Mitchell v Shikora. In the Mitchell case, the state Superior Court ruled on 6/18/2019 that expert witness testimony on surgical risks and complications in medical liability litigation was too prejudicial for a jury to hear. This incomprehensible decision flew in the face of decades of Pennsylvania jurisprudence and deprived surgeons of a major medical liability defense and would ultimately result in another liability insurance crisis in our state. The state Supreme Court wisely reversed the Superior Court’s decision.

PAOrtho and PAMED joined the litigation in defense of physicians by filing amicus (friend of the court) briefs, PAOrtho from the surgical perspective and PAMED from the general medical viewpoint. The high court’s 5 – 2 decision affirms physicians’ rights to properly defend themselves. The state Supreme Court stated in relevant part:

Ultimately, it is for the jury to determine whether a patient’s injury is the result of negligence. We find that, without the admission of testimony of known risks or complications, where appropriate, a jury may be deprived of information that a certain injury can occur absent negligence, and, thus, would be encouraged to infer that a physician is a guarantor of a particular outcome. While we recognize that this determination allows for the potential that a jury might mistakenly conclude that an injury was merely a risk or complication of a surgery, rather than as a result of negligence, we believe that the significant consequences of a prohibition on such evidence tip the scales in favor of admissibility; moreover, we are confident that trial judges will serve their evidentiary gate-keeping function in this regard and, through instruction and comment, ensure that juries understand the proper role of such evidence at trial. (emphasis added)

With this important judicial victory in hand, PAOrtho continues our aggressive advocacy against the expansion of medical liability exposure. Representative Donna Oberlander (R, Clarion) introduced HB 1063, the Society’s legislation to block the proposed “Venue Shopping” rule. This vital legislation will set in statute the nearly 20 year-old legal principle that medical liability litigation should be tried in the county of the alleged incident. PAOrtho will not rest until this threat to medical practice is resolved.

I thank my PAOrtho board colleagues who wisely decided to fight the Mitchell case with the Society’s amicus brief. Please be assured your interests are well guarded by our Society’s engaged and active leadership.

Asif Ilyas, MD