A surgeon performed two surgical procedures on a woman. The woman underwent the placement of an inferior vena cava filter (IVC filter) and a subsequent gastric bypass surgery. The surgeon advised the woman that the IVC filter was necessary to protect the woman from the risks associated with the pulmonary embolism that might form as a result of the bypass surgery. The surgeon told the woman that he would not perform the gastric bypass procedure without having the IVC filter in place.
Before implanting the IVC filter, the surgeon obtained a written consent form signed by the woman. The form listed as one of 20 risks of the procedure, “migration of filter.” The woman was not told and the form did not list as a risk of the procedure that the filter could fracture and that fragments of the filter could break loose and travel through the woman’s veins to affect vital organs.
Approximately two and a half years after the IVC filter was implanted and the gastric bypass procedure was performed, the woman suffered severe chest pain. A medical examination disclosed that the IVC filter had fractured, allowing fragments of the device to migrate to and lodge in the woman’s lungs. The surgeon surgically removed the main component of the filter but the fragments in the woman’s lungs could not be removed. The woman suffers from continuing pain and discomfort. The woman fears that the remaining fragments may migrate further resulting in serious harm or death.
The woman sued the surgeon for medical malpractice. The complaint claimed that the surgeon failed to obtain the woman’s informed consent before undertaking the IVC filter implantation.
In the pretrial deposition, the surgeon testified that the risks associated with an IVC filter included the risk that it could fracture and migrate.
In the woman’s opening statement at trial, the woman’s attorney informed the court and the jury that the plaintiff would not present an expert witness because “you can use your own common sense” to determine if the woman had been informed of the risks associated with the procedure. At the end of the woman’s opening statement, the surgeon moved for a directed verdict, arguing that without an expert witness, the woman was unable to prove a breach of the standard of care regarding informed consent. After concluding that the woman could not prevail without the opinion of a testifying expert, the McCracken Circuit Court directed a verdict in favor of the surgeon and dismissed the woman’s claim before the first witness was called.
The Court of Appeals reversed. The appellate court concluded that the trial court too hastily dismissed the case because the evidence to be presented at trial may have established an exception to the general rule requiring expert testimony to establish a professional standard of care.
The Supreme Court of Kentucky affirmed the appellate court’s decision, but on different grounds, and remanded to the trial court for further proceedings. The court held that (1) trial courts may grant a directed verdict dismissing the plaintiff’s claim immediately after the plaintiff’s opening statement and (2) the plaintiff’s counsel’s acknowledgment in opening statements that the plaintiff would not present an expert witness to prove the claim that the surgeon failed to obtain informed consent was not a judicial admission of a complete absence of proof on a material issue.
Trial courts may grant a directed verdict dismissing the plaintiff’s claim immediately after the plaintiff’s opening statement. Granting a directed verdict dismissing the plaintiff’s claim immediately after the plaintiff’s opening statement is proper only when plaintiff’s counsel has made admissions that are fatal to the plaintiff’s case. Trial courts should exercise caution and only grant a directed verdict dismissing the plaintiff’s claim immediately after the plaintiff’s opening statement where the admission of the nonexistence of or inability to prove a cause of action or a defense is clear. The court stated that, although it disagreed with the trial court’s decision to grant a directed verdict in this case, the trial court exercised commendable caution and careful deliberation.
The plaintiff’s counsel’s acknowledgment in opening statements that the plaintiff would not present an expert witness to prove the claim that the surgeon failed to obtain the plaintiff’s informed consent was not a judicial admission of a complete absence of proof on a material issue. A breach of the statutory standard for informed consent may be established by proving that either the medical provider’s actions for obtaining consent fell outside “the accepted standard of medical or dental practice” or that the information the medical provider provided regarding the risk did not provide a reasonable individual with a general understanding of the substantial risks and hazards inherent in the proposed treatment as recognized among other health care providers who perform similar treatments or procedures. The second prong of this disjunctive test requires an expert opinion only with regard to whether the risks and hazards involved in the claim were among those recognized among other health care providers who perform similar treatments or procedures. The surgeon himself provided the expertise required to show what risks associated with the IVC filter should have been included in the notice to the patient in the surgeon’s pretrial deposition. The court reasoned that the only issue remaining was the factual question of whether the information on the form provided a reasonable individual with a general understanding of the risks that the filter could break into fragments which could then migrate into other bodily organs. That factual question was one that could readily be resolved by reasonable jurors without the assistance of expert testimony. The court concluded that the trial court erred in granting a directed verdict dismissing the plaintiff’s claim immediately after the plaintiff’s opening statement.
The Supreme Court of Kentucky affirmed, on different grounds, the appellate court’s reversal of the trial court’s dismissal of the woman’s informed consent claim.
See: Argotte v. Harrington, 2017 WL 2591803 (Ky., June 15, 2017) (not designated for publication).
See also Medical Law Perspectives Report: Gastric Bypass, Sleeve Gastrectomy, Lap Banding and More: Risks of Patient Injury and Provider Malpractice in Weight-Loss Surgery