Brady v. Urbas, — A.3d — (Pa. 2015)
The Supreme Court of Pennsylvania answered this question in the negative.
The Court properly ruled that “the fact that a patient may have agreed to a procedure in light of the known risks does not make it more or less probable that the physician was negligent in either considering the patient an appropriate candidate for the operation or in performing it in the post-consent timeframe. Put differently, there is no assumption-of-the-risk defense available to a defendant physician which would vitiate his duty to provide treatment according to the ordinary standard of care. The patient’s actual, affirmative consent, therefore, is irrelevant to the question of negligence. … That being the case, in a trial on a malpractice complaint that only asserts negligence, and not lack of informed consent, evidence that a patient agreed to go forward with the operation in spite of the risks of which she was informed is irrelevant and should be excluded.”
The Court added in that connection that “Evidence of the patient’s consent also tends to confuse the issue because … the jury might reason that the patient’s consent to the procedure implies consent to the resultant injury … and thereby lose sight of the central question pertaining to whether the defendant’s actions conformed to the governing standard of care.”