On June 12, 2019, the District Court of Appeal of the State of Florida Fourth District (“Florida Appellate Court”) overturned a $15,591,619.00 Florida medical malpractice verdict against the defendant doctor, holding “the trial court erred when instructing the jury concerning informed consent.”
The Underlying Facts
The plaintiff filed her Florida medical malpractice lawsuit alleging that the defendant doctor failed to properly treat her necrotizing vasculitis in a timely manner with the drug Cytoxan when she was a patient at the hospital. Cytoxan was the brand name for “Cyclophosphamide,” a chemotherapy agent that is used to kill the cells that are driving vasculitis in patients with rheumatic diseases.
The plaintiff’s sole claim against the defendant doctor was for medical negligence. The defendant doctor asserted an affirmative defense of informed consent. Specifically, the defendant doctor asserted that the patient properly executed informed consents pursuant to sections 768.46 and/or 766.103, Florida Statutes, and therefore said allegations cannot impose liability.
The only issue tried at trial was the plaintiff’s medical malpractice (medical negligence) claim (the issue of informed consent was not tried). During the charge conference, the parties agreed to the general negligence instruction. The next day, however, the plaintiff sought to add an instruction concerning informed consent, arguing that the evidence supported that the defendant doctor’s negligence could be based on her failure to give the plaintiff sufficient information regarding Cytoxan. The doctor objected to the informed consent jury instruction, arguing that the informed consent issue was never raised during the trial, that the informed consent issue required expert testimony, and that there was no expert testimony to support the informed consent theory.
Over the defendant’s objection, the trial court instructed the jury as to both general negligence and informed consent. The Florida medical malpractice jury found the defendant doctor negligent and awarded the plaintiff $15,591,619.00 in damages. The defendant appealed.
Florida Appellate Court Opinion
The Florida Appellate Court stated that lack of informed consent is a separate and distinct theory of negligence, different from general medical negligence. The doctrine of informed consent requires the doctor to give the patient sufficient information concerning a proposed treatment or procedure. The Florida Appellate Court stated, “Here, the doctor did not propose Cytoxan as a possible treatment. Stated another way, the doctor’s purported failure to offer Cytoxan to the patient had no connection with the informed consent theory of liability. The failure to propose Cytoxan is adjunct and supplement to the general negligence theory … The informed consent instruction contributed to the jury’s finding the doctor negligent because it allowed the jury to find the doctor negligent even if the jury found that the doctor’s decision not to administer Cytoxan fell within the standard of care. This added theory of negligence prejudiced the doctor. The prejudicial instruction warrants reversal and a new trial concerning all issues.”
Source Sherrer v. Hollingsworth, No. 4D18-830.
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