In a case that the Supreme Court of Missouri (“Missouri Supreme Court”) stated was a case of first impression in Missouri, the Missouri Supreme Court held, “This Court joins the chorus of other state supreme courts and holds that evidence of alleged informed consent is irrelevant and can only mislead the jury in a medical malpractice case based on negligent performance of care and treatment. If such evidence is introduced at trial, it should be subject to a withdrawal instruction. Because the trial court abused its discretion by refusing the withdrawal instruction, the judgment is reversed.”
The Underlying Facts
The plaintiff sought treatment beginning in 2000 for acid reflux and trouble swallowing. In 2004 and 2005, the plaintiff underwent balloon dilation of her esophagus, which provided some long-term relief for her acid reflux. In the Fall of 2009, an ear, nose, and throat specialist (ENT) diagnosed the plaintiff with chronic pharyngitis (inflammation of the lining of the throat) and globus sensation (subjective feeling of something stuck in the throat causing difficulty swallowing but absent physical findings to suggest an abnormality). The specialist referred the plaintiff to the defendant gastroenterologist, for further evaluation.
The defendant gastroenterologist examined the plaintiff on December 2, 2009, prescribed medication for her acid reflux, and scheduled an esophagogastroduodenoscopy (“endoscopy”) for December 8, 2009 at an outpatient clinic. The defendant’s office notes from the December 2 appointment stated that the plaintiff understood the procedure and concluded “[s]he might need dilation of the esophagus depending on the findings.”
The defendant gastroenterologist performed the endoscopy on the plaintiff on December 8, 2009, during which he examined her esophagus and stomach down to her duodenum (the first section of the small intestine). He found gastritis (inflammation or irritation of the lining of the stomach) and a single polyp near the top of the plaintiff’s esophagus, which he removed with forceps. Otherwise, the defendant noted that the results of the rest of the endoscopy were normal.
Nonetheless, the defendant elected to perform an esophageal dilation that involves using a large, rubbery bore dilator to stretch the esophagus. As he withdrew the dilator, the defendant noticed that the guidewire was kinked. He performed another endoscopy and observed a tear in the plaintiff’s esophageal lining, concluding that the tear had been caused by the dilation, which is a known risk of the procedure. A cardiothoracic surgeon subsequently repaired the esophageal tear by opening the plaintiff’s chest wall, spreading her ribs, and collapsing one of her lungs in order to reach her esophagus. The surgeon noted no abnormalities with her esophagus other than the tear. The plaintiff claims that she has had constant pain in her ribs, nerves, and muscles since the surgery.
The plaintiff filed her Missouri medical malpractice lawsuit against the gastroenterologist and his medical practice, contending that the defendant gastroenterologist was negligent in performing a medically unnecessary empiric dilation (dilation without a finding of stricture or abnormality) because the endoscopy showed normal findings. The plaintiff did not allege a claim for lack of informed consent, and the defendants did not raise informed consent as an affirmative defense.
Nonetheless, the medical malpractice defense attorney stated in opening argument that the plaintiff had signed an informed consent form before the procedure that read, “The risks and benefits have been explained to me. I’m aware that my doctor may choose to do other procedures if necessary.” There was also some questioning and testimony during the Missouri medical malpractice trial involving informed consent.
After all of the evidence was introduced at trial, the plaintiff’s medical malpractice attorney requested a withdrawal instruction to remove informed consent to the esophageal dilation from the jury’s consideration. The trial judge refused the requested withdrawal instruction and the case was sent to the jury on the issue of whether the defendant gastroenterologist was negligent in performing the empiric dilation.
The Missouri medical malpractice jury asked during its deliberations to see a copy of the consent form that the plaintiff signed before the procedure, which was provided to them. The jury returned a verdict for the defendants, and the plaintiff appealed.
The Missouri Supreme Court’s Opinion
The Missouri Supreme Court stated that trial courts have the discretion to give withdrawal instructions when evidence on an issue has been received, but there is inadequate proof given for final submission of the issue to the jury.
The Missouri Supreme Court stated, “[t]he question of whether informed consent is an irrelevant and false issue in a medical negligence case is a matter of first impression for this Court,” and that “cases alleging improper care and treatment and cases alleging lack of informed consent are separate theories of medical malpractice.”
The Missouri Supreme Court held: “This Court joins the chorus of other state supreme courts and holds that evidence of alleged informed consent is irrelevant and can only mislead the jury in a medical malpractice case based on negligent performance of care and treatment. If such evidence is introduced at trial, it should be subject to a withdrawal instruction. Because the trial court abused its discretion by refusing the withdrawal instruction, the judgment is reversed.”
Source Wilson v. Patel, No. SC95890
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