Informed Consent in Medical Malpractice, Part 2
Two: The Defendant's Argument at Trial and the Issue on Appeal
By: Jonathan Nesser
Informed consent is theory of liability in medical malpractice cases. This is the second part of a multipart series on informed consent. The purpose of this series is to provide a general understanding about 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 ordinary 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 briefed and argued before the Appellate Court in Illinois.
In Part One of this series Attorney Nessler explained basic concepts of informed consent and briefly described the evidence presented at trial in Crim, et al. v. Dietrich. Part Two of the series will discuss the Defendant's argument at the close of the Plaintiffs' case at trial in Crim and the issue on appeal.
The issue on appeal was whether the Plaintiffs introduced sufficient evidence, together with reasonable inferences to be drawn therefrom, to support that “if the Defendant had disclosed material information a reasonable person in the Plaintiff’s position would have chosen a course of treatment different from that actually undertaken.”
A Plaintiff must prove four elements to support a medical malpractice action based upon the doctrine of informed consent. In order for a jury to determine whether the Plaintiff proved these elements by a preponderance of the evidence (that they are more likely true that not true), a Plaintiff must make a prima facie showing of each element at trial. A "prima facie" showing of an element means the Plaintiff must introduce some evidence that might lead a reasonable juror to conclude that the element is more likely true than not true. If a Plaintiff fails to make a prima facie showing of any one element, a Trial Court will dismiss the cause of action by directed verdict.
At the close of the Plaintiffs’ case-in-chief in Crim, et al. v. Dietrich, the Defendant moved for a partial directed verdict on the Plaintiffs’ theory of liability pursuant to the doctrine of informed consent. The Defendant admitted that the Plaintiffs introduced sufficient evidence to support a prima facie showing that the Defendant owed a duty to disclose the risks at issue (the first element), and sufficient evidence to support a prima facie showing that the Defendant deviated from the standard of care (the second element). The Defendant’s entire argument rested upon whether the Plaintiff introduced sufficient evidence to support the third element, “if the Defendant 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.” The Defendant argued that to support this element, a Plaintiff must elicit expert medical testimony specifically stating, “to a reasonable degree of medical certainty, a reasonable patient, under the Plaintiff-mother’s circumstances, would have elected cesarean section rather than vaginal birth.”
The Court granted the Defendant’s Motion for Partial Directed Verdict, and dismissed the Plaintiff’s cause of action for failure to obtain informed consent. In doing so, the trial court agreed with the Defendant’s argument that a plaintiff must elicit expert testimony specifically stating that, “to a reasonable degree of medical certainty, a reasonable mother, when weighing the options, would have chosen cesarean section over vaginal birth.”
The Plaintiffs appealed. The issue on appeal was whether the Plaintiffs introduced sufficient evidence, together with reasonable inferences to be drawn therefrom, to support that “if the Defendant had disclosed material information a reasonable person in the Plaintiff’s position would have chosen a course of treatment different from that actually undertaken.”
The Plaintiffs argued on appeal that expert testimony is allowed but is not required to establish cause and effect (i.e. whether the undisclosed information would have altered a reasonable person’s decision regarding the treatment at issue); that is for the jury to decide. Coryell v. Smith, 274 Ill.App.3d 553 (1st Dist. 1995); see also, Smith v. Marvin, 377 Ill.App.3d 562, 570 (3rd Dist. 2007) (emphasis added). The Plaintiff argued that expert testimony is not required to prove a causal connection between non-disclosure of the patient’s decision regarding the treatment at issue because an “objective” reasonable person standard determines cause and effect in informed consent cases. Shiff v. Frieberg, 331 Ill.App.3d 643, 657 (1st Dist. 2002). Once jurors have been educated as to information that a physician should have disclosed to the Plaintiff, “no one is in a better position than the jury to determine whether any alleged undisclosed information would have altered the Plaintiff’s decision to undergo the proposed treatment had it been disclosed.” Coryell, 274 Ill.App.3d at 449-550. Given the objective standard on the issue of causation, a Patient-Plaintiff’s testimony regarding what she would have done, if informed, is relevant but not dispositive on the issue. Coryell, 274 Ill.App.3d at 548.
The Defendant argued that the Plaintiffs failed to offer sufficient evidence to prove the third element, arguing that the Plaintiffs' expert must offer specific and formulaic testimony about how an ordinary and reasonable patient would act under the same or similar circumstances as the Plaintiff-mother. In reliance upon this argument, the Trial Court accepted the Defendant's argument that it is required that an expert specifically testify, “to a reasonable degree of medical certainty, that a mother, when weighing the options, would choose cesarean over vaginal birth,” and the Trial Court made that point the sole basis of its decision to grant the directed verdict. The Defendant cited St. Gemme v. Tomlin, 118 Ill.App.3d 766 (4th Dist. 1983) in support of this argument, and the trial court cited the same case in support of its decision. On Appeal, the Defendant argued that St. Gemme directly supported her position and that the directed verdict was appropriate.
The Trial Court accepted the Defendant's argument that the Plaintiff did not make a prima facie showing of the third element in the Plaintiffs' informed consent case. The Defendant argued that the Plaintiff was required to introduce formulaic and specific testimony from an expert to support this element, and that the holding in St. Gemme v. Tomlin supports this requirement. The Plaintiffs appealed the Trial Court's decision. On appeal, the Appellate Court must decide whether this formulaic and specific expert testimony is required to support a prima facie showing of the third element in informed consent cases.
The next part of this review explores the Plaintiffs' rebuttal to the Defendant's argument before the Appellate court in Illinois. Part Three will distinguish St. Gemme v. Tomlin from the facts in Crim, and reconcile the holding in St. Gemme v. Tomlin with Coryell v. Smith.
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