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Defining Informed Consent in Medical Malpractice

Defining Informed Consent in Medical Malpractice

inform consent in medical practice

The Law Offices of Frederick W. Nessler & Associates, Ltd. helped clarify and define a critical aspect of certain medical malpractice cases in Illinois.  The Fourth District Appellate Court agreed with Nessler & Associates’ position on what evidence is necessary to support a cause of action for informed consent medical malpractice cases in Illinois, in Crim v. Detrich, 2016 IL App (4th) 150843.

Crim v. Detrich is a birth injury case.  The Plaintiffs alleged that Defendant should have informed the mother that her pregnancy showed signs that her child was a very large baby and that vaginal birth of very large infants carries the risk of shoulder dystocia.  The Plaintiffs alleged that the Defendant should have informed the mother that if shoulder dystocia should occur, the infant might be injured or even die.  The Plaintiffs also alleged that Defendant should have informed the mother that a c-section was an option that might avoid these risks.  This was the basis of the Plaintiffs’ informed consent claim against the Defendant’s doctor.

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)  The “graveman” of an informed consent case is that the plaintiff establishes significant undisclosed information relating to the treatment which would have altered a reasonable patient’s consent to treatment. Crim, 2016 IL App (4th) 150843, ¶ 35.  During the trial, the Plaintiffs introduced evidence supporting (1) alternatives existed to natural birth, (2) the alternative procedure could have mitigated the injuries the newborn sustained, and (3) the mother testified that had she been advised of that alternative, she would not have proceeded with the natural childbirth. Id. at ¶48.

At the close of the Plaintiffs’ case, the Defendant in Crim argued that to support an informed consent case a Plaintiff must provide expert medical testimony that the physician witness is of the opinion, to a reasonable degree of medical certainty, that “a reasonable person in the Plaintiff-patient’s circumstance would have opted not to undergo the procedure had the patient known of the risk.”  The Plaintiffs argued that Illinois did not require this precise and formulaic testimony to support a cause of action for informed consent.  The Trial Court agreed with the Defendant and entered a directed verdict against the Plaintiffs on the informed consent count.

The Appellate Court reversed the trial court.  Justice Steigmann delivered the opinion for the Fourth District.  Justice Steigmann writes, “The trial court erred by granting Defendant a directed verdict on the issue of informed consent.  Essentially the [Plaintiffs] claim that the court incorrectly determined that the [Plaintiffs] were required to present expert medical testimony that [the mother] would have elected a C-Section over natural birth.  We agree.”  Crim, 2016 IL App (4th) 150843 at ¶ 33.

Justice Steigmann goes on to discuss precisely what elements are necessary to support a medical malpractice cause of action under a theory of informed consent.  The elements are:

  1. The physician had a duty to disclose material risks;
  2. The physician failed to disclose or inadequately disclosed those risks;
  3. As a direct and proximate result of the failure to disclose, the patient consented to the treatment she otherwise would not have consented to; and
  4. Plaintiff was injured by the proposed treatment.

Justice Steigmann writes that the Plaintiffs presented sufficient evidence to support a prima facie case for informed consent against the Defendant doctor.  The Fourth District holds that, in an informed consent case, a Plaintiff is not required to introduce expert testimony specifically stating that, “To a reasonable degree of medical certainty it is the expert’s opinion that a reasonable patient when weighing the options, would have opted not to undergo the procedure.”  The Appellate Court agreed with the Plaintiff’s position on what evidence is necessary to support a cause of action for informed consent in medical malpractice, reversed the trial court’s ruling, and remanded this cause for a new trial.

Attorney Jonathan Nessler briefed and argued this matter before the Fourth District.  Attorney Nessler thoroughly explains his argument on his blog.  This analysis can be found in The Elements of an Informed Consent Claim.

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