Case commentaries

In the course of performing a laparoscopic hysterectomy on Lanette Mitchell, Dr Evan Shikora made an incision into Mitchell’s abdomen. He noticed that Mitchell’s colon “had been severely cut”, making it necessary to perform an emergency loop ileostomy. Mitchell’s bowel was repaired, but she needed to wear an external ileostomy pouch for a time. Mitchell sued Dr Shikora, alleging negligence. She argued that Dr Shikora’s conduct fell below the medical standard of care, inasmuch as he failed “to identify her colon before making an incision into her abdomen”. Importantly, though, she did not claim battery or lack of informed consent; i.e. she did not claim that she was unaware of the risks or complications associated with the medical procedure when she consented to it. At trial, the defendant adduced expert evidence about known risks and complications of laparoscopic hysterectomies; in particular, that “in making the initial incision, a physician often cannot see through the tissue”, making it impossible to know for certain whether he or she will perforate the colon even in the absence of surgical negligence. The risks of such perforation are therefore present even during a ”properly performed laparoscopic hysterectomy.” The jury found in favour of Dr Shikora. On appeal, a three-judge panel of the Pennsylvania Superior Court held that the expert evidence, adduced by the defendant, should have been excluded. That evidence, the Superior Court held, was irrelevant, misleading, and confusing: