Kentucky Supreme Court Addresses Informed Consent In Medical Malpractice Cases

162017_132140396847214_292624_nIn its opinion filed on August 20, 2015, the Supreme Court of Kentucky (“Kentucky Supreme Court”) addressed whether the informed consent instruction given by the trial court in a Kentucky medical malpractice case correctly incorporated the applicable law so as to guide the jury accurately in its determination. The Kentucky Supreme Court concluded in the case it was deciding that the informed consent instruction that was given was not correct.

The Underlying Facts

The plaintiff, who had a history of back problems that included two prior surgeries and foot drop, sought treatment for her back and leg pain from the defendant orthopedic surgeon. An MRI revealed a disc herniation, multilevel stenosis, and disc degeneration at the lower levels of the plaintiff’s spine. Conservative medical treatment failed and the defendant orthopedic surgeon agreed to perform a difficult and risky lumbar laminectomy and decompression procedure involving the removal of bone and scar tissue from the plaintiff’s lumbar spine. The plaintiff began to experience weakness in her lower extremities shortly after surgery and eventually suffered incontinence and permanent paralysis from her waist down as a result of the surgery.

The plaintiff alleged in her Kentucky medical malpractice lawsuit that the defendant orthopedic surgeon was negligent in his performance of the surgical procedure and was negligent in his failure to adequately inform her of the possible risks associated with the surgery (the plaintiff claimed that prior to the surgery she was not informed by the defendant or anyone else that paralysis or the loss of her bladder and bowel functions were possible risks associated with the surgery). Both sides presented expert testimony at trial on both theories of negligence. The trial court gave a separate jury instruction on each theory of liability. The jury returned verdicts for the defendant on both theories. The plaintiff appealed and the Kentucky Court of Appeals affirmed the judgment.

The Kentucky Supreme Court stated that the issue before it was whether the informed consent instruction given by the trial court correctly incorporated the applicable law so as to guide the jury accurately in its determination.

The Standard Of Review For Alleged Errors In Jury Instructions

The Kentucky Supreme Court discussed whether allegations of jury instruction errors are to be reviewed by appellate courts de novo or for abuse of discretion (i.e., whether an appellate court reviewing that decision should decide the matter de novo, based upon its own perception of the legal theories that may be deduced from the evidence and accepted by a reasonable juror, or whether the reviewing court should apply the abuse of discretion standard, thus giving a measure of deference to the trial judge’s perspective of how the evidentiary facts relate to the tendered instructions).

The Kentucky Supreme Court held that when the question is whether a trial court erred by (1) giving an instruction that was not supported by the evidence or (2) not giving an instruction that was required by the evidence, the appropriate standard for appellate review is whether the trial court abused its discretion, stating that the decision to give or to decline to give a particular jury instruction inherently requires complete familiarity with the factual and evidentiary subtleties of the case that are best understood by the judge overseeing the trial from the bench in the courtroom. Because such decisions are necessarily based upon the evidence presented at the trial, the trial judge’s superior view of that evidence warrants a measure of deference from appellate courts that is reflected in the abuse of discretion standard.

However, the Kentucky Supreme Court further held that the substantive content of the jury instructions will be reviewed de novo.

The Informed Consent Issue In The Present Case

The defendant orthopedic surgeon testified during trial that he told the plaintiff that the risks of the surgery were infection, bleeding, nerve damage, dural leak, injury to the nerve, and destabilization of the scoliosis requiring fusion. The written consent form signed by the plaintiff prior to surgery listed those same items and further included injury to the surrounding structures and anesthesia. The defendant conceded that he never used the terms paralysis, incontinence, loss of bowel and bladder control, or any variations thereof, when he explained the surgical risks to the plaintiff. Nonetheless, the defendant argued that “nerve damage” encompasses the entire spectrum of things from the slightest numbness to devastating injury, and thus satisfied the medical standard of care for reasonably informing a patient of the possibility of paralysis and loss of bowel and bladder control.

Kentucky’s Informed Consent Law

KRS 304.40-320 provides: In any action brought for treating, examining, or operating on a claimant wherein the claimant’s informed consent is an element, the claimant’s informed consent shall be deemed to have been given where: (1) The action of the health care provider in obtaining the consent of the patient or another person authorized to give consent for the patient was in accordance with the accepted standard of medical or dental practice among members of the profession with similar training and experience; and (2) A reasonable individual, from the information provided by the health care provider under the circumstances, would have a general understanding of the procedure and medically or dentally acceptable alternative procedures or treatments and substantial risks and hazards inherent in the proposed treatment or procedures which are recognized among other health care providers who perform similar treatments or procedures.

The Kentucky Supreme Court stated that pursuant to KRS 304.40-320, not only must the physician’s action in disclosing the risks be “in accordance with the accepted standard of medical . . . practice among members of the profession with similar training and experience” as stated in Subsection (1), it is further required that the information imparted by the physician be stated so as to provide “a reasonable individual” with “a general understanding of the procedure . . . [any] acceptable alternative[s] … [the] substantial risks and hazards inherent in the proposed treatment or procedures which are recognized among other health care providers who perform similar treatments or procedures.”

The Kentucky Supreme Court held that the informed consent instruction given by the trial court in the case it was deciding failed to incorporate the “general understanding” component of the duty provided in Subsection (2), and therefore the instruction given by the trial court did not accurately set forth the applicable law (an informed consent instruction couched only in terms of the general professional standard of care is not close enough).

The Kentucky Supreme Court stated that the question was whether “a reasonable individual” would generally understand that “nerve injury” included the possibility of permanent paralysis below the waist. Because the jury was not so instructed, the Kentucky Supreme Court reversed the judgment and remanded for a new trial on that issue.

Source Sargent v. Shaffer, 2013-SC-000111-DG.

If you believe that a doctor failed to obtain informed consent regarding medical treatment or a medical procedure, you should promptly consult with a medical malpractice attorney in your U.S. state who may investigate your informed consent claim for you and represent you in such a claim, if appropriate.

Click here to visit our website or telephone us toll free at 800-295-3959 to be connected with medical malpractice lawyers in your state who may assist you with your lack of informed consent claim.

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This entry was posted on Tuesday, August 25th, 2015 at 5:23 am. Both comments and pings are currently closed.

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