In a direct medical negligence case, the plaintiff is alleging that the defendant physician negligently did or did not do something in compliance with the standard of care. For example, in a laparoscopic gall bladder surgery case where the plaintiff suffered a cut common bile duct, the plaintiff is alleging improper technique. This is what I call a "direct" medical negligence case. The case is about what the defendant did, not about what he told the patient. A direct negligence case has nothing to do with informed consent. Taylor v. County of Cook, 957 N.E.2d 413, 433 (1st D. 2011) Any informed consent conversations or documents are not relevant to whether the defendant surgeon did or did not do the procedure correctly. Too often, the defense lawyer is allowed to sneak before the jury irrelevant, confusing evidence of informed consent. The plaintiff's trial lawyer should always bring a Motion in Limine seeking to exclude evidence of informed consent.
Evidence of Informed Consent is not Relevant to a Direct Negligence Case
In many jurisdictions, the appellate courts have held that evidence of informed consent is irrelevant to proof of medical negligence. For example, Hayes v. Camel, M.D., 927 A.2d 880, 889(Connecticut Sup. Ct. 2007); Wright v. Kaye, M.D., 593 N.E.2d 307 (Sup. Ct. of Virginia 2004); Waller v. Aggarwal, M.D., 116 Ohio App.3d 355(1999) See also, Storm v. NSL Rockland Place, 898 A.2d 874, 884-85 (Del. Sup. Ct 2005). Illinois has yet to directly decide the issue.
The Plaintiff Did Not Consent to Negligence
Plaintiff's informed consent to surgery is not an affirmative defense to medical negligence. Corletta v. Caserta, 204 Ill.App.3d 403 (1st D. 1990) The Plaintiff did not assume the risk that the Defendant would be negligent in his care and treatment. But such evidence can confuse and mislead the jury.
Lastly, the plaintiff's lawyer should be aware of the Illinois case of Hamrock v. Henry, 222 Ill.App.3d 487 (1st D. 1991), where the plaintiff's signed informed consent document was admitted for purposes of impeachment. Assuming the plaintiff has not testified inconsistent with her signed informed consent forms, this evidence has no relevance to proof of a violation of the standard of care. It also is not proof of a recognized complication defense. Assuming the injury can occur either with negligence or in the absence of negligence, the informed consent documents and discussions do nothing to prove negligence one way or another.
In conclusion, the plaintiff's lawyer should always file a Motion In Limine to exclude evidence of informed consent. Avoid swearing contests about what was said.
See my Motion in Limine on the subject.