November 19, 2019

In its opinion dated October 10, 2019, the Court of Appeals of Indiana (“Indiana Appellate Court”) affirmed an Indiana medical malpractice jury’s verdict in favor of the plaintiff who had undergone five surgeries on his left hand after he suffered a crush injury at work, including a failed neuroma procedure on the stump of his amputated left index finger that resulted in permanent pain and numbness in his thumb that affect his ability to work.

The Indiana medical malpractice jury took only about one hour to return its verdict in favor of the plaintiff in the amount of $2,300,000, finding that the defendant surgeon had failed to obtain the plaintiff’s consent for the neuroma procedure. The jury’s verdict is subject to Indiana’s cap on damages in medical malpractice cases in the amount of $1,250,000. The defendant surgeon is responsible for only the first $250,000 of the verdict. The defendant surgeon filed an appeal.

Indiana Appellate Court Opinion

Informed Consent

The Indiana Appellate Court stated that lack of informed consent is a theory of liability that is distinct from a medical malpractice claim that a doctor provided treatment that negligently failed to meet the requisite standard of care. Lack of informed consent is viewed as a battery claim if there is an alleged complete lack of consent to medical treatment, but otherwise it is regarded as a specific form of negligence for breach of the required standard of professional conduct. To succeed on a lack of informed consent action, the plaintiff must prove (1) nondisclosure of required information; (2) actual damage; (3) resulting from the risks of which the patient was not informed; (4) cause in fact, which is to say that the plaintiff would have rejected the medical treatment if he had known the risk; and (5) that reasonable persons, if properly informed, would have rejected the proposed treatment.

The Indiana Appellate Court stated with regard to the case it was deciding: “The reasonable inferences to be drawn from the expert testimony provided are that roughly twenty-five percent of people who undertake a neuroma procedure do not experience a reduction in the level and intensity of pain to the point that the patient says “that was worth it”; that the roughly seventy-five percent of people who do experience success do not have complete elimination of pain; and that a primary component of a discussion on the risks of a neuroma procedure includes discussing the reoccurrence of pain or the lack of eliminating the pain. We find under these circumstances that a finding that reasonable persons, if properly informed, would have rejected the proposed treatment is not against the great weight of the evidence and conclude that the evidence most favorable to the judgment along with all reasonable inferences to be drawn from the evidence supports the judgment with regard to this issue.”

With regard to the defendant’s argument that the jury’s verdict was excessive, the Indiana Appellate Court stated: “The evidence reveals that [the plaintiff’s] remaining life expectancy is 37.6 years based upon the age that he was at the time of the accident, that the location of the pain before the neuroma procedure “had nothing to do” with his thumb but rather two other fingers, that the pain after the neuroma procedure was located in his thumb mostly and is permanent, and that the problem with his thumb interferes with his work depending on the task [and] that the pain mainly in his thumb and hand “is so bad that he can’t stand it somedays” … [the defendant’s] arguments to the contrary are essentially a request for us to reweigh the evidence and reassess witness credibility, which we cannot do … We cannot say that the court abused its discretion in denying the motion to correct error.”

Source Glock v. Kennedy, 18A-CT-2486.

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