Tuesday, June 27, 2017

Wilson v. P.B. Patel, M.D., P.C.

            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.