The
Supreme Court of Missouri overturned a jury verdict in favor of the defendant
in a medical malpractice case, stating that evidence regarding the patient's
informed consent to the procedure was not relevant and likely confused the
jury.[1] The court stated that the trial judge should
have granted Plaintiff Josephine Wilson's request for a withdrawal instruction relating
to the fact that she signed a consent form allowing Defendant Dr. Rohtashav
Dhir to perform the procedure.[2] The case was brought on improper care grounds
and not on lack of informed consent grounds, which are separate and distinct
theories of medical malpractice.[3] This case note will examine the procedural
issues raised when evidence is introduced by both parties on a different theory
of negligence than what was presented in the pleadings and affirmative
defenses.
I. Facts and Holding
In 2000, Josephine Wilson sought treatment
for acid reflux and trouble swallowing.[4] She saw a specialist who diagnosed her with
"chronic pharyngitis
(inflammation of the throat lining) and globus sensation (subjective feeling of
something stuck in the throat causing difficulty swallowing but absent physical
findings to suggest an abnormality)."[5] She was referred to Dr. Rohtashav Dhir, a
gastroenterologist, for further review.[6] On December 2, 2009, Dr. Dhir suggested that
Ms. Wilson undergo an endoscopy, which was performed on December 8, 2009.[7] Dr. Dhir noted that Ms. Wilson appeared to
have gastritis and a polyp near the top of her esophagus, which he removed.[8] Dr. Dhir's operative report stated that Ms.
Wilson's esophagus appeared to be normal.[9] Although there were no abnormal findings, Dr.
Dhir decided to perform an esophageal dilation.[10] He stated that the "dilation went
smooth" and he felt nothing unexpected.[11] However, when he withdrew the dilator, he
noticed that the guidewire was kinked.[12] Dr. Dhir performed a second endoscopy and
noticed a tear in Wilson's esophageal lining.[13] He concluded that the tear had been caused by
the dilation – a known risk of the procedure.[14] The tear was repaired by a cardiothoracic
surgeon. The procedure entailed "opening Wilson's chest wall, spreading
her ribs, and collapsing one of her lungs to reach her esophagus."[15] Wilson stated that she experienced constant
pain in her muscles, nerves, and ribs since the surgery.[16] She sued Dr. Dhir and his practice group for
medical malpractice, arguing that the dilation procedure was medically
unnecessary and below the standard of care.[17] Dr. Dhir defended his decision to perform the
procedure because he thought it would help Wilson's dysphagia because abnormal
tissue sometimes occurs in the outer layers of the esophagus, which are not
visible with endoscopy.[18]
Prior to the procedure, Wilson signed a
"Consent to Treatment and Rendering of Other Medical Services" form.[19] However, her theory of the case was that Dr.
Dhir was negligent in performing a medically unnecessary dilation because the
endoscopy showed normal findings.[20] She did not present a claim for lack of
informed consent, nor did Dr. Dhir raise informed consent as an affirmative
defense.[21] Regardless, Dr. Dhir's counsel stated in
opening argument that Wilson signed an informed consent form.[22] Wilson's counsel failed to object to the
mention of the form.[23] Later in the trial, Dr. Dhir's counsel questioned
Wilson about the informed consent, and again Wilson's counsel did not object,
and Wilson even discussed it further on redirect.[24] After the evidence had been presented,
Wilson's counsel requested a withdrawal instruction to remove informed consent
from the jury's consideration.[25] The trial court indicated confusion as to
whether informed consent was an issue, and ultimately refused the instruction.[26] The case was submitted on the theory that Dr.
Dhir was negligent in performing the dilation, and Dr. Dhir's counsel stated in
closing argument that Wilson suffered a "known complication," to
which Wilson's counsel did not object.[27] A copy of the consent form was provided to
the jury during deliberations, and the jury returned a verdict for Dr. Dhir and
P.B. Patel, MD., P.C., from which Wilson appeals.[28] The Supreme Court of Missouri held that the
patient's alleged informed consent to the dilation was irrelevant and could
only mislead a jury; therefore, jury instruction withdrawing evidence of the
patient's informed consent was warranted.[29]
II. Legal
Background
A. Medical Malpractice Causes of Action
There are several distinct theories on which
a plaintiff can assert a claim for medical negligence.[30] Negligent performance of a procedure and
negligence relating to informed consent are two different causes of action.[31] In Missouri, negligent performance of a
procedure is a statutory cause of action.[32] The elements are as follows:
(1) an act or
omission of a defendant health care provider; (2) failure of the health care
provider to use that degree of skill and learning ordinarily used under the
same or similar circumstances by members of the defendant's profession; and (3)
causation of plaintiff's injury or death by the failure to use the requisite
care.[33]
The
elements of an informed consent action, whether under the statute or at common
law, are as follows: (1) nondisclosure of the procedure, its risks or benefits,
prior to performing it; (2) causation; and (3) resulting damages.[34]
The distinction between these two causes
of action was clearly recognized by the Supreme Court of Missouri in Miller v. Werner.[35] This case involved surgical removal of cysts
which resulted in scarring.[36] The plaintiff's original claim was for
negligence in performing the surgery, but on appeal the plaintiff asserted a
new cause of action on a theory of lack of informed consent.[37] The court stated:
It is apparent
that evidence necessary to support an allegation of negligence in performance
of surgery has nothing to do with and would not support or prove a charge of
negligence in failing to secure an informed consent for such surgery. The first
has to do with the act of operating and attendant exercise of skill; the
latter, of necessity, is a matter preceding surgery.[38]
B.
Withdrawal
Instructions
While it is clear that informed consent
and negligent performance of surgery are two separate causes of action, the
question of whether informed consent evidence is an irrelevant and a false
issue in a medical negligence case is a matter of first impression for Missouri
courts.[39] However, the issue has been addressed in
other states, including Connecticut, Delaware, Pennsylvania, and Virginia.[40] The Supreme Court of Virginia addressed the
issue of informed consent evidence in a negligent performance of surgery case
in Wright v. Kaye.[41] In that case, the plaintiff brought a medical
malpractice action against a surgeon for negligent performance of an urachal
cyst excision.[42] Wright sought to exclude evidence of
discussions between herself and Dr. Kaye as to the risk of injury during the
procedure.[43] She stated that since she did not make a
claim for failure to obtain informed consent, any testimony concerning
discussions of the risk of surgery was not relevant and would only confuse the
jury.[44] The Supreme Court of Virginia agreed with
Wright and stated:
[T]he 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 that surgery. In effect, the jury could conclude that consent amounted to
a waiver, which is plainly wrong.[45]
Although
there is no dispute that informed consent and negligent performance of surgery
are two separate causes of action which could serve to confuse the jury, there
is a question as to whether a withdrawal instruction is appropriate when the
plaintiff fails to object to the introduction of improper evidence. The Missouri Court of Appeals, Eastern
District, addressed this issue in Womack
v. Crescent Metal Products, Inc.[46] This case involved the introduction
of evidence concerning the payment of workers’ compensation benefits.[47] Discussion of workers’ compensation benefits
was inadvertently introduced during direct examination of a witness for the
plaintiff regarding lost wages.[48] Plaintiff's counsel sought a withdrawal
instruction as to the payment of workers’ compensation benefits to avoid
confusing the jury, which the trial court refused.[49] The court of appeals stated that
"[w]hether the evidence came in by reason of inadvertence on the part of
plaintiff or whether it was erroneously before the jury, it injected a false
issue in the case."[50] The court of appeals found that this
constituted reversible error.[51]
Similarly,
the Supreme Court of Missouri considered the introduction of evidence of workers’
compensation payments in Sampson v.
Missouri Pacific Railroad Co.[52] The court found that allowing the jury to
consider evidence of workers' compensation benefits in a negligence case
creates a "danger that a false or foreign issue will thereby be raised and
distort the contention of the parties as pleaded."[53] The court went on to state that instructions
should be given to guard against false issues, and the trial court's discretion
when deciding whether to give the instruction should be guided by the degree to
which the jury may be misled in its consideration of the case as it is pleaded.[54]
III. Instant
Decision
The Supreme Court
of Missouri held that a withdrawal instruction should have been given as to the
evidence introduced regarding informed consent; therefore, the court remanded
the case.[55] The court first noted that withdrawal
instructions are appropriate when evidence on an issue has been introduced,
"but there is inadequate proof given
for final submission of the issue to the jury.”[56] The court further stated that "[w]here
the evidence is of a character that might easily lead to the raising of a false
issue, the court ought to guard against such an issue by appropriate
instructions."[57]
The court stated
that it has previously acknowledged the distinction between cases involving
improper care and treatment and cases involving lack of informed consent.[58] The Missouri Court of Appeals, Western
District, reached the same conclusion in this case.[59] The court of appeals also referred to Wright v. Kaye and stated that evidence
of informed consent in a case involving improper care and treatment "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 that surgery.”[60]
While the Western
District and the Supreme Court of Missouri agree that these are two separate
theories of medical malpractice, they disagree on the procedural issue presented in this case.[61] Namely, is it reversible error and an abuse
of discretion for the trial court to refuse to withdraw evidence that has been
introduced and not objected to at trial?
The Western District said no, stating:
While we likely would not have found an abuse of discretion had the trial court accepted the offered withdrawal instruction and read it to the jury, we cannot conclude that the trial court abused its broad discretion in refusing the withdrawal instruction, considering how much discussion of the evidence had already been introduced by both parties prior to the request for a withdrawal instruction.[62]
The Western District further stated
that the trial court does not have a duty to sua sponte prohibit defense counsel's closing argument on the
informed consent topic.[63]
The Supreme Court
of Missouri disagreed with this conclusion.[64] Relying on Womack and Sampson, the court
held that "the trial court has an affirmative duty to ensure the jury is
fully informed and guarded from considering false issues."[65] In addition, the court stated that the
comments to Missouri Approved Jury Instruction (MAI) 34.02 are instructive
because "its use is not limited to withdrawing evidence which is
accidently or improperly admitted. It is intended rather to clarify what the
jury is to consider in assessing damages.”[66] Finally, the court stated that it is in
agreement with other state supreme courts that have concluded that evidence of
informed consent is irrelevant and can only mislead the jury in a case based on
negligent performance of care and treatment.[67] Evidence introduced regarding informed
consent is subject to a withdrawal instruction, and the trial court abused its
discretion by refusing the instruction.[68]
IV. Comment
This case
highlights the balance that courts have to consider when evidence not
pertaining to the pleadings is introduced by both parties. Is it more appropriate to reject a request
for a withdrawal instruction when the evidence has already been admitted at
trial without objection, or is it more appropriate for the trial judge to
recognize that improper evidence will mislead and confuse the jury and grant
the request for a withdrawal instruction?
The Supreme Court of Missouri felt that clarity for the jury outweighed
the trial court's discretion in refusing the instruction.[69]
As the Western
District noted, it's not clear if the outcome of the case would have been any
different if the withdrawal instruction had been granted as the jury already
heard the evidence on informed consent presented by both parties. The Western
District stated that "the better practice is to tell the jury what the
issues are rather than to tell them what issues are not."[70] In other words, the "toothpaste was out
of the tube" and asking the jurors to disregard that evidence may have
also been confusing.
For practitioners,
the takeaway here is that the better practice is to object to the introduction
of evidence that relates to a cause of action not raised in the pleadings or
affirmative defenses. In a partial
dissent, Judge Zel M. Fischer stated that the "delay in objecting to the
evidence regarding informed consent resembles a trial strategy gone awry, not
reversible error by the circuit court."[71] However, the majority of the Supreme Court of
Missouri has now introduced a new standard where a withdrawal instruction should
be granted when improper and misleading evidence is admitted, regardless of
which party introduced the evidence and regardless of whether any party
objected to it.
-
Jessica Peterman
[1] Wilson v.
P.B. Patel, M.D., P.C., No. SC 95890, 2017 WL 2119350, at *1 (Mo. May 16, 2017)
(en banc).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id. at *2.
[18] Id.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] Id. at *2-*3.
[27] Id. at *3.
[28] Id.
[29] Id. at *5.
[30] See generally 34 Mo.
Prac., Personal Injury and Torts Handbook § 28:2 (2016 ed.). Causes of action
include general negligence, fraudulent concealment, failure to diagnose, etc. Id.
[31] Id.
[32] Mo. Rev. Stat. § 538.210 (West 2015).
[33] Id.
[34] 34 Mo. Prac., Personal Injury and Torts Handbook
§ 28:2 (2016 ed.).
[35] Miller v. Werner, 431 S.W.2d 116, 116 (Mo. 1968).
[36] Id. at 117.
[37] Id. at 117-18.
[38] Id. at 118.
[39] Wilson, 2017 WL 2119350, at *4.
[40] Id.
[41] Wright v. Kaye, 593 S.E.2d 307, 307 (2004).
[42] Id. at 309.
[43] Id. at 310.
[44] Id.
[45] Id. at 317. Similar decisions were rendered in Connecticut,
Delaware, and Pennsylvania. See Hayes
v. Camel, 927 A.2d 880, 889-90 (Conn. 2007); Baird v. Owczarek, 93 A.3d 1222,
1233 (Del. 2014); Brady v. Urbas, 111 A.3d 1155, 1162-63 (Pa. 2015).
[46] Womack v.
Crescent Metal Prods., Inc., 539 S.W.2d 481, 481 (Mo. Ct. App. 1976).
[47] Id. at 482.
[48] Id.
[49] Id. at 483.
[50] Id. at 485.
[51] Id.
[52] Sampson v. Mo. Pac. R.R. Co., 560 S.W.2d 573, 573 (Mo. 1978)
(en banc).
[53] Id. at 584.
[54] Id. (emphasis added).
[55] Wilson, 2017 WL 2119350, at *5.
[56] Id. at *3 (quoting Trimble v.
Pracna, 167 S.W.3d 706, 716 (Mo. 2005) (en banc)).
[57] Id. (quoting Sampson v. Mo. Pac.
R.R. Co., 560 S.W.2d 573, 583 (Mo. 1978) (en banc)).
[58] Id. at *4.
[59] Wilson v. Patel, No. WD 78538, 2016 WL 3414952, at *4 (Mo.
Ct. App. June 21, 2016), reh'g and/or
transfer denied (Aug. 2, 2016), transferred
to Mo. S. Ct. sub nom. Wilson v. P.B. Patel, M.D., P.C., No. SC 95890, 2017
WL 2119350 (Mo. May 16, 2017).
[60] Id.
[61] Id. at *4-*5; Wilson, 2017
WL 2119350, at *5.
[62] Wilson v.
Patel, No. WD 78538, 2016 WL 3414952, at *5 (Mo. Ct. App. June 21, 2016), reh'g and/or transfer denied (Aug. 2,
2016), transferred to Mo. S. Ct. sub nom.
Wilson v. P.B. Patel, M.D., P.C., No. SC 95890, 2017 WL 2119350 (Mo. May 16,
2017).
[63] Id. at *6.
[64] Wilson, 2017 WL 2119350, at *5.
[65] Id.
[66] Mo.
Approved Jury Instr. (Civil) 34.02 (7th ed.).
[67] Wilson, 2017 WL 2119350, at *5.
[68] Id.
[69] Id.
[70] Wilson v.
Patel, No. WD 78538, 2016 WL 3414952, at *5 (Mo. Ct. App. June 21, 2016), reh'g and/or transfer denied (Aug. 2,
2016), transferred to Mo. S. Ct. sub nom.
Wilson v. P.B. Patel, M.D., P.C., No. SC 95890, 2017 WL 2119350 (Mo. May
16, 2017) (quoting Nelson v. O'Leary, 291 S.W.2d 142, 148 (Mo. 1956)).
[71] Wilson, 2017 WL 2119350, at *6.
