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Plaintiff’s Motion to Exclude Informed Consent as Evidence of Known Risk

Note: This motion in limine involves an annoying attempt by defense counsel to suggest to the jury that the plaintiff assumed the risk of the injury because it is on the consent form. “You knew you could suffer this injury before you had the operation, right?” Well, you also know someone might come across the center line and hit you head on. But you don’t assume the risk of that either. It is garbage and it should not come into evidence.

We won this motion and the case with a $1.1 million verdict.

We also battled this motion in a case we handled in Oregon. You can find that motion here.

In the Circuit Court for Baltimore City, Maryland

NANCY O’BRIEN,
– Plaintiff,

v.

DAVID LAWRENCE,
– Defendant.

CASE NO.: 24-C-12-071467-MM

Plaintiff’s Motion in Limine to Bar Evidence that Plaintiff’s Injury Was a Known Risk and to Bar Evidence of Informed Consent by Defendant

Plaintiff, Nancy O’Brien, by and through her counsel, files Plaintiff’s Motion In Limine to Bar Evidence That Plaintiff’s Injury Was a Known Risk and to Bar Evidence of Informed Consent by Defendant. As the Plaintiff has not asserted a cause of action claiming a violation of informed consent, the preoperative form is irrelevant. Concomitantly, any mention by Defendant of this doctrine should be prohibited. (Note: since this motion was written, a new appellate opinion cleared up many of the issues in this case. You can find the opinion and commentary here.)

I. Argument

This is a medical negligence case in which it is alleged that Dr. Lawrence negligently caused an injury to the Plaintiff’s common hepatic duct and bile duct while attempting a laparoscopic cholecystectomy (gall bladder removal).

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As part of his case, the Defendant may seek to introduce evidence that Plaintiff was otherwise warned of the possibility of an injury to the common hepatic duct and/or bile duct. In particular, Defendant will likely attempt to offer the testimony of Sandy Thompson, M.D., that “injury to a common bile duct is an inherent risk of gallbladder surgery” and that “some of the experts who are publishing on this have not found any foolproof method to prevent these injuries; that some of these injuries occur despite your best efforts.” Exhibit 1, P. 13, L. 2-24. Dr. Thompson elaborates:

It seems to be an irreducible number, this .4 to .7 percent is reported everywhere, even among people who have done thousands and thousands of these, who are the world experts, they can’t get below that number. It is an inherent risk. I’ve believed for many years it’s an inherent risk of the procedure. I put it on all of my consent forms. Most people I know put it on all of their consent forms.

Id. at P. 75, L. 17 to P. 76, L. 6. This is even though the literature referred to by Dr. Thompson did not reveal whether the injuries discussed occurred where there was compliance with the standard of care. Id. at P. 53, L. 21 to P. 54, L. 2. Defendant wishes to make the argument that because an injury to the common hepatic duct and/or bile duct is a known risk of the procedure, that it is irrelevant whether it was caused by a failure to follow the standard of care.

In that way, Dr. Hsaio hopes to escape the consequences of his surgical negligence by persuading the jury that Ms. O’Brien somehow assumed the risk that the operation would result in an injury to her common hepatic duct and/or bile duct. The fallacy of this argument is shown by the testimony of Defendant’s other expert witness, Dr. Smithson:

Q. So the fact that an injury occurred that’s a risk has really no bearing on whether the standard of care was followed or breached?

MR. MCDADE: Objection to the form of the question, lack of foundation.

A: Well, that’s true.

Exhibit 2, P. 51, L. 17 to P. 52, l. 1.

Such an argument would confuse the jury, which may not recognize the critical distinction between a patient accepting a small but unavoidable risk and a doctor attempting to contract away his liability for malpractice. This is especially true when the Plaintiff has not asserted a cause of action alleging a violation of informed consent.

The concepts of medical negligence and lack of informed consent are separate and distinct. The former involves the physician’s duty to perform competently at all times. The latter concerns a patient’s right to be informed of risks that cannot be avoided even with the best of care. One court considering this matter made clear “informed consent” is not a defense to a physician’s failure to render appropriate and competent medical services. Waller v. Aggarwal, 16 Ohio App. 3d 355, 688 N.E.2d 274 (1996). Writing for a unanimous court, Judge Nader stated:

As appellant correctly contends, the action brought against appellee sounded in negligence. It did not sound in battery for a non consensual procedure. Nor did appellant allege that she was not fully apprised of the risks of the procedure. Instead, appellant alleged that appellee negligently performed the procedure. The fact that appellee informed appellant that injury to the bladder was a possible risk of the procedure could not be a defense to the claim of negligence brought by appellant. Thus, the admission of evidence pertaining to that issue and references to that issue carried great potential for the confusion of the jury.

As a result, we hold that the references to informed consent made during the trial constituted plain error, as they were both apparent on their face and prejudicial.

With regard to the jury interrogatory, it is clear that the language employed demonstrates the confusion of the issues. The fact that appellant consented to the procedure and was informed of its risks did not result in a “waiver of her rights”. It did not grant consent for the procedure to be performed negligently, and it did not waive the appellant’s right to recourse in the event the procedure was performed negligently.116 Ohio App. at 357-358, 688 N.E.2d at 275.

All &ldqu
o;sister state courts that have considered this issue uniformly have concluded that evidence of informed consent, such as consent forms, is both irrelevant and unduly prejudicial in medical malpractice cases without claims of lack of informed consent.” Hayes v. Camel, 283 Conn. 475, 485-86, 927 A.2d 880, 888-89 (2007). The court in Hayes held: “We conclude that the trial court abused its discretion when it admitted evidence of the risks of the microdissection in the form of their disclosure to the plaintiff. The admission of evidence that Camel had told the plaintiff of those risks, namely, his testimony and the office notes to that effect, implicates the concerns about jury confusion raised by our sister state courts that have considered the issue of the admissibility of informed consent in medical malpractice cases without informed consent claims.”). Id. at 487, 927 A.2d at 889. See also Wright v. Kaye, 267 Va. 510, 529, 593 S.E.2d 307, 317 (“Wright’s awareness of the general risks of surgery is not a defense available to Dr. Kaye against the claim of deviation from the standard of care. While Wright or any other patient may consent to risk, she does not consent to negligence.

Knowledge by the trier of fact of informed consent to risk, where a lack of informed consent is not an issue, does not help the plaintiff prove negligence. Nor does it help the defendant show he was not negligent. In such a case, the admission of evidence concerning a plaintiff’s consent could only serve to confuse the jury because the jury could conclude, contrary to the law and the evidence, that consent to the surgery was tantamount to consent to the injury which resulted from the surgery. In effect, the jury could conclude the consent amounted to a waiver, which is plainly wrong.”).

In this case, as it has in other cases, the Court should preclude evidence that Plaintiff’s injury was a known risk where there is no claim of a lack of informed consent. Plaintiff has not pled and does not intend to pursue, a claim of lack of informed consent. Thus, any testimony or documentary evidence pertaining to that issue would be legally irrelevant, and could only serve to confuse the jury on the relevant issue of Defendant’s medical and surgical negligence. For that reason, Plaintiff moves the Court in limine to order that no such evidence or argument will be allowed.

Defendants seek an advantage through numerical superiority and through presenting basically the same testimony to the jury twice. The probative value of presenting the same opinions twice is minimal, while the danger of unfair prejudice, confusion of the issues, waste of time, and presentation of cumulative evidence is high. The Court should limit the Defendant to one expert on the issues of standard of care and causation.

WHEREFORE, Plaintiff respectfully requests that this Court grant the present Motion, and limit the Defendant to a single witness on the issues of standard of care and causation.

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