By: Jonathan Nessler

ONE: BASIC CONCEPTS OF INFORMED CONSENT

This is the first section in a multipart series on informed consent.  Informed consent is a theory of liability applicable to some medical malpractice cases.  The purpose of this series is to provide a general understanding of informed consent as a theory of liability in medical malpractice cases.  While this review is intended for non-lawyers, 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.  

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). 

There are four essential elements a plaintiff must prove in a malpractice action based upon the doctrine of informed consent: (1) the physician had a duty to disclose medical information; (2) 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; (3) 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 (4) 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).  

Until recently, there was some uncertainty whether the third element required a plaintiff to introduce expert testimony from a physician opining 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 Fourth District cleared up any confusion on this issue in Crim, et al. v. Dietrich, 2016 IL App (4th) 150843.  

Crim, et al. v. Dietrich is a medical malpractice cause of action.  The Plaintiffs’ Fourth Amended Complaint alleged two theories of negligence.  The theories alleged by the Plaintiffs included (1) professional negligence against the Defendant doctor, and (2) failure to obtain the Plaintiff’s informed consent.  

Crim is a shoulder dystocia injury case.  At trial the Plaintiff introduced evidence that the Plaintiff-mother showed signs during her pregnancy that indicated that the child she was carrying was a very large fetus.  The Plaintiffs alleged that the Defendant doctor should have informed the Plaintiff-mother that there was a potential that she was carrying a large child; that the vaginal birth of a large child carries the risk of the occurrence of a shoulder dystocia; that a shoulder dystocia might injure the child; and that C-section was an alternative to vaginal birth, which might avoid shoulder dystocia.

At trial, the Plaintiffs introduced expert evidence about the risks and injuries associated with the occurrence of a shoulder dystocia and expert testimony about the correlation between severity of injury and likelihood of occurrence. The Plaintiffs’ expert physician thoroughly described the risks associated with C-section.  The Plaintiffs’ expert discussed his opinion about when he believes a reasonably careful obstetrician must discuss these risks and alternatives with a patient, when, like the Plaintiff-mother, that patient is suspected to be carrying a large fetus.  

The Plaintiff-mother testified that no conversation about the foregoing took place. The Plaintiffs' expert testified that the Defendant’s failure to inform the Plaintiff-mother of the risks of vaginal delivery of a very large fetus and the alternative option of birth by C-section violated the standard of care. 

At the close of the Plaintiffs' case, the Defendant moved for a directed verdict.  The next part of this series will discuss the basis for the Defendant's motion for directed verdict and the trial court's ruling.

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