The Indiana Court of Appeals recently affirmed a trial court’s denial of a defendant’s motion for judgment on the evidence and motion to correct error in a medical malpractice informed consent case in which a jury awarded significant damages to the plaintiff arising out of a nerve injury during surgery. The patient in Glock v. Kennedy underwent five surgeries to his left hand, including amputations to his left index finger, which were performed by a surgeon after the patient suffered a crush injury to his left hand. During the fourth surgery, the surgeon caused a nerve injury to the patient’s thumb.
While the medical review panel formed to review the case pursuant to the Indiana Medical Malpractice Act found that the surgeon met the applicable standard of care and his conduct was not a factor of the resultant damages, the panel found there was a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court or jury as to whether the surgeon provided appropriate informed consent before the fourth surgery.
In order to prevail on a claim asserting lack of informed consent in a medical care case, a patient 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 plaintiff in Glock presented testimony from one of the medical review panel members stating that discussion of the risks of the procedure performed should include nerve injury and reoccurrence of pain or the lack of eliminating the pain. Contrary to the surgeon’s testimony, the patient testified that he was never told the likelihood of success of the procedure in which the nerve injury occurred was only 75% and that the surgeon never explained any risk of the nerves being close together between the index finger and thumb. The patient’s stepsister also testified that the patient was not told about the risk of nerve damage.
The Court of Appeals first addressed the surgeon’s argument that the patient failed to present expert medical evidence as to causation. The surgeon argued that no expert evidence was presented establishing that anything done during the fourth procedure caused the patient’s nerve injury. In response, the plaintiff argued that the surgeon’s own testimony that the fourth surgery caused permanent nerve injury was evidence of causation from a medical expert. The Court also noted that the medical review panel member who testified had testified about the risks of the procedure. With the Court addressing the surgeon’s argument as a sufficiency challenge, the Court found that there was substantial evidence of probative value supporting the judgment on this issue.
The Court of Appeals next addressed the surgeon’s argument that the patient failed to present expert medical evidence on the fifth element of an informed consent claim, i.e., that a reasonable person who was properly informed of the risks and complications of the procedure would have refused the treatment. The Court reviewed Indiana precedent on informed consent claims, including the distinction between what a “reasonably prudent physician” would believe necessary to disclose, as proven by expert testimony, and what a “reasonably prudent patient” would want to know. While prior precedent indicates expert testimony is required to determine what a reasonably prudent physician should tell a patient, unless such falls within a layperson’s understanding, and whether actual damage resulted from the inadequate disclosure, no expert testimony is required as to whether a particular disclosure did or did not occur, whether the plaintiff would have chosen a different treatment if advised of the risk, and whether a reasonable person would have chosen a different course of medical treatment if he or she had been adequately informed.
The Court of Appeals concluded that in this case a finding that reasonable persons, if properly informed, would have rejected the proposed treatment was not against the great weight of the evidence, and 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 in this case.
Lastly, the Court of Appeals addressed the surgeon’s argument that the jury verdict was excessive. The Court noted that evidence had been presented as to the patient’s life expectancy, the permanent nature of his nerve injury, and how the injury affected his life and work. In reviewing the evidence, the Court of Appeals, being unable to reweigh the evidence or reassess witness credibility, concluded that the trial court did not abuse its discretion in denying the motion to correct error.
Informed consent cases are notoriously difficult to prosecute for even the most skilled Indiana medical malpractice attorneys. However, the plaintiff in Glock ran the proverbial gauntlet to achieve and uphold a verdict, perhaps signaling a shifting climate in what jurors and courts believe is reasonable when informing a patient of the risks and benefits of a medical procedure. You can read the full opinion here.