The Superior Court of New Jersey Appellate Division (“Appellate Court”) held in its opinion filed on July 25, 2017 that the trial court had erroneously allowed informed consent evidence to be introduced by the defense during a New Jersey medical malpractice jury trial that resulted in a defense verdict, because the plaintiff had not alleged or raised the issue of lack of informed consent.
The plaintiff had sued her gastroenterologist for medical malpractice involving her August 29, 2011 colonoscopy to remove a polyp during which she suffered a perforation of her colon resulting in peritonitis. The New Jersey medical malpractice plaintiff had to have a right hemicolectomy, ileostomy, and mucous fistula, and later underwent surgery to reverse the ileostomy.
The plaintiff filed her New Jersey medical malpractice lawsuit in which she alleged that the defendant gastroenterologist was medically negligent by “[f]ailing to inject the polyp and surrounding colon with Saline to create a cushion underneath the polyp.” The plaintiff did not, however, assert a claim for lack of informed consent.
During the January 2016 New Jersey medical malpractice trial, the defense was allowed to introduce into evidence the consent forms signed by the plaintiff regarding the procedure, over the objection of the plaintiff. At the end of the testimony, the trial judge allowed the jury to review the plaintiff’s informed consent documents as part of its deliberation. The New Jersey medical malpractice jury subsequently returned its verdict in favor of the defendant, and the plaintiff appealed.
The Appellate Court stated that in order to prevail in a medical malpractice action based upon a deviation from the standard of care, the plaintiff must generally present expert testimony establishing (1) the applicable standard of care; (2) a deviation from that standard of care; and (3) that the deviation proximately caused the injury – a physician must act with that degree of care, knowledge, and skill ordinarily possessed and exercised in similar situations by the average member of the profession practicing in the field.
The Appellate Court further stated that informed consent is generally unrelated to the standard of care for performing medical treatment: the informed-consent basis of malpractice, as opposed to deviation from the applicable standard of care, rests not upon the physician having erred in diagnosis or administration of treatment but rather in the failure to have provided the patient with adequate information regarding the risks of a given treatment or with adequate information regarding the availability of alternative treatments and the comparative risks and benefits of each.
The Appellate Court stated that a plaintiff alleging a lack of informed consent claim must meet a four-part test in order to establish the prima facie case for lack of informed consent: the patient must prove that the doctor withheld pertinent medical information concerning the risks of the procedure or treatment, the alternatives, or the potential results if the procedure or treatment were not undertaken.
The Appellate Court stated that it was convinced that the admission of the informed consent evidence in the present case, where the plaintiff asserted only a claim of negligent treatment, constituted reversible error: the only issue at trial was whether the defendant deviated from the standard of care in performing the August 29, 2011 colonoscopy, and the plaintiff’s acknowledgment of the risk for perforation had no bearing on this determination. Although negligent medical treatment and informed consent fall under the umbrella of medical negligence, New Jersey law clearly distinguishes the two claims, and they require different elements of proof.
The Appellate Court held that the informed consent evidence was irrelevant to the issue presented at trial and should have been excluded on the plaintiff’s motion in limine, and the informed consent evidence had the capacity to mislead the jury, thereby making it capable of producing an unjust result.
Source Erhlich v. Sorokin, Docket No. A-2781-15T3
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