Case commentaries
| Author | Michael Plaxton |
| DOI | 10.1177/1365712719874630 |
| Published date | 01 October 2019 |
| Date | 01 October 2019 |
The International Journal of
Evidence & Proof
Case commentaries
2019, Vol. 23(4) 440–441
ª The Author(s) 2019
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1365712719874630
journals.sagepub.com/home/epj
Michael Plaxton
University of Saskatchewan, Canada
Relevance; materiality; expert opinion evidence – Pennsylvania,
United States
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:
The fact that one of the risks and complications of the laparoscopic hysterectomy, i.e. the perforation of the
bowel, was the injury suffered...
Evidence & Proof
Case commentaries
2019, Vol. 23(4) 440–441
ª The Author(s) 2019
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1365712719874630
journals.sagepub.com/home/epj
Michael Plaxton
University of Saskatchewan, Canada
Relevance; materiality; expert opinion evidence – Pennsylvania,
United States
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:
The fact that one of the risks and complications of the laparoscopic hysterectomy, i.e. the perforation of the
bowel, was the injury suffered...
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