Three: Distinguishing St. Gemme v. Tomlin
Informed consent is theory of liability in medical malpractice cases. This is the third 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 will discuss 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 Part Three of the series discusses the the Plaintiffs' rebuttal to the Defendant's argument on appeal, and distinguishes the primary case the Defendant's relied upon at trial and on appeal, St. Gemme v. Tomlin. The final part of the series will review the Plaintiffs' argument on appeal and the Appellate Court's ruling.
A physician’s education and training qualifies him to discuss medicine and what a reasonable physician should do, not the reasonableness of a patient’s decisions and actions.
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). Part One of this series introduced the basic legal principles behind this concept. Part Two of the series discussed the Defendant's argument at trial and defined the issue on appeal.
The Plaintiffs' informed consent action was dismissed by the trial court at the close of Plaintiffs' case-in-chief. Plaintiffs appealed. On appeal the Defendant argued that the Trial Court's dismissal of this cause should be upheld, and cited St. Gemme v. Tomlin in support of this argument.
The Plaintiffs argued that St. Gemme v. Tomlin does not stand for the proposition that a Plaintiff must introduce expert testimony specifically stating that, “to a reasonable degree of medical certainty it is the expert’s opinion that a reasonable patient, when weighing the options, would have opted not to undergo the procedure.” In support of this argument, the Plaintiffs point out Justice Webber did not write that specific and formulaic testimony is a requirement in the St. Gemme opinion. St. Gemme v. Tomlin, 118 Ill.App.3d 766, et al. (4th Dist. 1983). The Plaintiffs argued that Justice Webber does not acknowledge this as a requirement, because Illinois law does not require a Plaintiff to introduce this precise testimony to support the element of causal connection (the third element), and it is questionable whether a medical professional would even be qualified to testify as to what a reasonable patient would do. After all, a physician’s education and training qualifies him to discuss medicine and what a reasonable physician should do, not the reasonableness of a patient’s decisions and actions.
The Plaintiffs argued that in order to support the element of “causal connection” (third element) a Plaintiff must point to significant undisclosed information relating to the treatment, which would have altered the Plaintiff’s decision to undergo it. Schiff, 331 Ill.App.3d at 658. Then it is for the jury to decide if any alleged undisclosed information would have altered the Plaintiff’s decision. Id. If the disclosure would not have changed the decision of a reasonable person in the position of the Plaintiff, there is no causal connection between nondisclosure and her postoperative condition; if, however, disclosure would have caused a reasonable person in the position of the patient to refuse the surgery or therapy, a causal connection is shown. Id. Accordingly, to any extent that St. Gemme might be read to require expert testimony on the issue of the third element in an informed consent case, it is only to the extent necessary to aid the trier of fact in understanding what significant undisclosed information relates to the treatment. Schiff, 331 Ill.App.3d at 658; compare with, St. Gemme, 118 Ill.App.3d at 768. Depending on the case, this information might include 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). It is for this reason that Justice Webber, in the St. Gemme opinion, remarked that “all of the experts testified that there was no reasonable alternative,” and “all agreed that within a short time the tooth would become abscessed and hence life-threatening.” St. Gemme, 118 Ill.App.3d at 769. In other words, no qualified medical testimony, or other evidence whatsoever, was introduced in St. Gemme to support what alternatives might exist that, in turn, would support a finding that a reasonable patient would have refused the treatment.
The Plaintiff went on to argue that the procedural context in which the Fourth District Court considered the issue in St. Gemme was highly relevant to the application of that case. In St. Gemme, a jury was permitted to consider the informed consent count, and the question before the Court was whether “an opposite conclusion was clearly evident.” St. Gemme, 118 Ill.App.3d at 769. In St. Gemme, the patient underwent a tooth extraction. Id. at 677. One consequence of this operation was paresthesia. Id. at 678. Alternatively, if the tooth extraction was not performed, the tooth would have become infected, and resulted in the patient’s death. Id. In other words, the only “alternative” to the procedure was death. Because there were no other “alternatives” offered into evidence, the court concluded that a finding that the Plaintiff did not support the third element of the doctrine of informed consent (that a reasonable person would choose death over paresthesia) was not against the manifest weight of the evidence. Id. at 769. The only evidence that the patient, in St. Gemme, would have forgone the procedure in light of this risk was the testimony of the Plaintiff. Id. The St. Gemme court holds that the Plaintiff’s testimony alone is not enough. Id. However, the St. Gemme court does not, in any way, hold that the Plaintiff must introduce expert testimony specifically stating 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.”
The ‘graveman’ of an informed consent case is that the Plaintiff establish significant undisclosed information relating to the treatment which would have altered a reasonable patient’s consent to treatment.
When the facts of St. Gemme are compared to the facts presented in Schiff v. Friberg, this point becomes apparent. Schiff v. Friberg, 331 Ill.App.3d 643, 658 (1st Dist. 2002); compare with, St. Gemme, 118 Ill.App.3d at 768. The Court in Schiff expressly finds that evidence of alternative procedures combined with the testimony of the Plaintiff that she would not have consented if she knew about the risks and alternatives, is enough to support a prima facie case for informed consent. Schiff, 331 Ill.App.3d at 658.
The Plaintiff argued that the lack of qualified testimony regarding alternatives is essential to the holding in St. Gemme, but does not stand for the proposition that a Plaintiff must introduce specific testimony from an expert that “to a reasonable degree of medical certainty a reasonable person would not undergo the procedure.” Instead, it stands for the proposition, as stated throughout Illinois case law, that the plaintiff must point to significant undisclosed information relating to the treatment, which would have altered the Plaintiff’s decision to undergo it. Schiff, 331 Ill.App.3d at 658. This is what is meant by: “The ‘graveman’ of an informed consent case is that the Plaintiff establish significant undisclosed information relating to the treatment which would have altered a reasonable patient’s consent to treatment.” Davis, 405 Ill.App.3d at 29. Depending on the case, this evidence should include pros and cons of undergoing the procedure at issue, available alternatives, and pros and cons of those alternatives. The Plaintiff’s testimony alone is likely not sufficient to accomplish this task, but is relevant to the inquiry. Coryell, 274 Ill.App.3d at 548.
After the Plaintiffs distinguished St. Gemme v. Tomlin, and reasoned why that case did not stand for the proposition the Defendant's asserted it stood for, the Plaintiffs' discussed what evidence is required to present a prima facie case of informed consent. This argument, and the Appellate Court's decision will be discussed in the next, and last, part of this series.
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