October 1, 2020

The Court of Appeals of the State of Kansas (“Kansas Appellate Court”), in its opinion dated September 25, 2020, discussed the requirements for medical malpractice claims and informed consent claims in Kansas.

Kansas Medical Malpractice Claims

To establish medical malpractice in Kansas, a plaintiff must prove: (1) the health care provider owed a duty of care to the patient; (2) the health care provider breached that duty or deviated from the appropriate standard of care; (3) the patient was injured; and (4) the injury was proximately caused by the health care provider’s breach of the appropriate standard of care. A plaintiff in a medical malpractice case bears the burden of proving that a health care provider breached the appropriate standard of care and also that the breach caused the injury or damage claimed.

Except where the lack of reasonable care or the existence of causation would be apparent to the average layperson based on his or her common knowledge or experience, Kansas law requires expert testimony in a medical malpractice action to establish both the accepted standard of care and to prove causation. The opinions rendered by expert witnesses should generally be limited to matters which are within a reasonable degree of probability and should not include possibilities.

Kansas Informed Consent Claims

The rules relating to expert witnesses also apply to medical malpractice claims based on an alleged breach of the doctrine of informed consent. Under the doctrine of informed consent, a health care provider is required to disclose sufficient information to allow his or her patient—in the absence of an emergency—to intelligently consent to the proposed treatment. A claim of lack of informed consent is a type of medical malpractice claim.

The rationale underlying the doctrine of informed consent is that in the absence of an emergency, the ultimate decision of whether to proceed with a particular course of treatment belongs to the patient. The duty of a health care provider to disclose information under the informed consent doctrine is not unlimited. Rather, the duty is limited to those disclosures which a reasonable health care provider would make under the same or similar circumstances.

To establish the essential element of causation in an informed consent case, the plaintiff must show that a reasonable patient would have declined the medical procedure if adequate disclosure of the risk or danger was made by the health care provider. This is an objective standard. Even though the patient’s testimony regarding whether he or she would have consented to the medical procedure may be considered, it is not controlling.

Nonfulfillment of a health care provider’s duty to disclose certain information to a patient is not sufficient—in and of itself—to establish liability. Instead, it must be shown that the occurrence of the undisclosed risk resulted in harm to the patient. In other words, a plaintiff must establish a causal relationship between a health care provider’s failure to adequately disclose the risks of a procedure and the damage to the patient.

A plaintiff proves causation in a lack of informed consent case by showing (1) an objectively reasonable patient would have declined treatment had he or she been advised of a material risk or danger; (2) the patient was not advised of the material risk or danger; and (3) the undisclosed risk or danger actually materialized, resulting in harm to the patient.

In Kansas, a health care provider is not strictly liable under the doctrine of informed consent for failing to disclose information to a patient that a reasonable health care provider would disclose. Instead, to prevail on a lack of informed consent claim, a causal connection must be established—normally by expert testimony offered within a reasonable degree of medical probability—between the health care provider’s failure to adequately disclose material information and the harm ultimately suffered by the patient.

Source Acord v. Porter, No. 119,537.

If you or a loved one may have been injured as a result of medical negligence or lack of informed consent in Kansas, you should promptly find a Kansas medical malpractice lawyer who may investigate your medical malpractice claim for you and represent you or your loved one in a Kansas medical malpractice case, if appropriate.

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