Four: The Appellants' Argument and the Fourth District's Ruling
Informed consent is theory of liability in medical malpractice cases. This is the final part in a multipart series on informed consent. The purpose of this series is to provide a general understanding of informed consent as a theory of liability in medical malpractice. This review is intended for non-lawyers, although it will be more in-depth than an average review on attorneynessler.com. This series explains the general concepts of informed consent by discussing the Fourth District Appellate Court's decision in Crim, et al. v. Dietrich, (2016 IL App (4th) 150843), a case that Attorney Nessler brief and argued before the Appellate Court.
This is the final part of the series, and will discuss the the Plaintiffs' argument on appeal and the Appellate Court's ruling.
Crim v. Dietrich is a medical malpractice case that alleged a cause of a action for failure to obtain informed consent. At the close of the Plaintiffs' case, the Defendant moved for a directed verdict, asking the trial court to dismiss the Plaintiffs' cause of action. The trial court granted the motion. The Plaintiffs appealed. On appeal, the Defendant argued that the St. Gemme case supported the dismissal. The Plaintiffs distinguished St. Gemme. The Plaintiffs went on to argue what evidence must be introduced to establish a prima facie case for informed consent.
Justice Steigmann, writing for the the Fourth District Appellate Court, disagrees with the Defendant’s interpretation of St. Gemme.
The Plaintiffs pointed to Schiff v. Friberg as highly instructive on how to apply the principles of the informed consent doctrine. One of the issues the defendant in Schiff raises in his appeal is whether the trial court’s denial of a directed verdict on informed consent constituted error. The defendant in Schiff asserted in his Motion for Directed Verdict that the plaintiff in Schiff failed to establish through expert testimony, given to a reasonable degree of medical certainty, that her injury was caused by the risk in that case. Schiff v. Friberg, 331 Ill.App.3d 643, 657 (1st Dist. 2002). The Schiff court, relying on Coryell, states that, with regard to the third element in an informed consent action, a plaintiff must point to significant undisclosed information relating to the treatment which would have altered her decision to undergo it. Schiff, 331 Ill.App.3d at 658; see also, Coryell v. Smith, 274 Ill.App.3d 543 (3rd Dist. 1995). The court goes on to state that it is then for the jury to decide if the alleged undisclosed information would have altered the plaintiff’s decision. Id.
The Schiff Court, in applying these legal principles to the facts in that case, first considers that the plaintiff’s expert testified that there were nonsurgical procedures available to collect the information that the defendant intended to collect. The court in Schiff also considered the fact that the plaintiff was asked “if you had been informed on January 11, 1995, that she was at an increasing [sic] risk of having organ damage as a result of the type of surgery Dr. Friberg wanted to do on January 17, 1995, would you have consented to the surgery?” The plaintiff answered “no”. Id. Relying solely upon these two pieces of evidence, the Appellate Court found that the trial court did not error in denying Dr. Friberg’s Motion for Directed Verdict on the informed consent claim. Id. In other words, these two pieces of evidence alone are sufficient to support a prima facie showing of the third element of the doctrine of informed consent.
Applying this analysis to the facts in the Crim case, the Plaintiffs argued it is clear that the Plaintiffs introduced sufficient evidence to support the third element. Like the Schiff case, the Plaintiffs' expert testified, at trial, that a caesarean section, to avoid a vaginal birth, is an alternative medical procedure intended to avoid shoulder dystocia. Further, like the Schiff case, the Plaintiff testified in the Crim trial that she would have opted for a C-section, had she known of the risks associated with vaginal delivery of a macrocosmic infant, the alternative of a C-section, and the risks associated with the C-section. The Plaintiffs went on to point out that Plaintiffs introduced a substantial amount of evidence in addition to these necessary facts. Pursuant to the holding in Schiff this evidence alone is sufficient to support a prima facie showing of the third element of the doctrine of informed consent. Schiff, 331 Ill.App.3d at 657-658. This holding is not contradicted by the holding in St. Gemme.
The Plaintiffs argued that they introduced an enormous amount of evidence in support of the third element of the doctrine of informed consent at trial. The Schiff case provides an excellent example of the type of evidence necessary to support a prima facie case for the third element of informed consent. The Plaintiff, during the Crim trial, presented the exact type of evidence that established a prima facie case in Schiff, and a great deal more evidence in addition thereto. The trial court erred when it made the finding that Plaintiffs failed to support the third element of the doctrine of informed consent. In turn, the trial court erred when it granted the Defendant’s Motion for Partial Directed Verdict, in reliance upon this finding, and should be reversed.
The Appellate Court agreed with the Plaintiffs. Justice Steigmann, writing for the the Fourth District Appellate Court, disagrees with the Defendant’s interpretation of St. Gemme. Crim, (2016 IL App (4th) 150843) at ¶ 43. The Plaintiffs’ physician expert is not required to testify that it is his opinion to a reasonable degree of medical certainty, that “a reasonable person in the same or similar circumstances as the plaintiff would have opted not to undergo the procedure at issue, had the reasonable patient known about the otherwise undisclosed material information.” The Appellate Court reversed the trial court’s judgment and remanded the case for a new trial.
The Crim case clears up exactly what evidence is necessary to support a prima facie case for informed consent in Illinois. The informed consent doctrine imposes upon medical professionals a pretreatment duty to inform the patient of the material medical information relative to the proposed treatment, specifically information that may affect the patient’s decision concerning treatment. Coryell v. Smith, 274 Ill.App.3d 543, 546 (1st Dist. 1995); see also, Davis v. Craft, 405 Ill.App.3d 20, 28 - 29 (1st Dist. 2010). The four essential elements a plaintiff must prove are:
- The physician had a duty to disclose medical information;
- The physician failed to inform or inadequately informed the patient of medically material information which a reasonably well qualified physician would have disclosed under the same or similar circumstances;
- If the physician had disclosed the material information a reasonable person in the plaintiff’s position would have chosen a course of treatment different from that actually undertaken (or have chosen no treatment instead of what was done); and
- The patient was injured by the proposed treatment or failure to treat. IPI.105.0.03; see also, Davis v. Kraft, 405 Ill.App.3d 20, 29 (1st Dist. 2010).
In order to establish a prima facie case for the third element, a Plaintiff must introduce evidence about the risk and benefits of the procedure itself, the existence of any alternative procedures, and the risk and benefits of any alternative procedures that might be available. IPI 105.07.01 (Notes on Use). There is no requirement that the Plaintiff introduce expert testimony that "to a reasonable degree of medical certainty it is the expert’s opinion that a reasonable person would have opted not to undergo the procedure."