No Lack of Informed Consent if Reasonable Person Understands Paralysis Possible

A woman had a history of back problems that included two prior surgeries and a problem known as foot drop. She sought further treatment for her back and leg pain at an orthopedic practice group. An MRI revealed a disc herniation, multilevel stenosis, and disc degeneration at the lower levels of her spine. The woman was referred to an orthopedic surgeon.


After more conservative modes of treatment failed to provide adequate relief, the orthopedic surgeon agreed to perform a lumbar laminectomy and decompression procedure involving the removal of bone and scar tissue from the woman’s lumbar spine. Shortly after surgery, the woman began to experience weakness in her lower extremities. Eventually, and as a consequence of the surgery, she suffered incontinence and permanent paralysis from her waist down.


The woman sued the orthopedic surgeon. The complaint alleged the orthopedic surgeon was negligent in his care and treatment of her medical problems. In pretrial discovery and trial, the woman’s evidence focused on establishing that the orthopedic surgeon was negligent in his performance of the surgical procedure and negligent in his failure to adequately inform the woman of the possible risks associated with the surgery. The woman claimed that prior to surgery she was not informed by the orthopedic surgeon or anyone else that paralysis or the loss of her bladder and bowel functions were possible risks associated with the surgery. The orthopedic surgeon testified that after more conservative treatment options had been exhausted without success, he tried to dissuade the woman from the surgical option because it was very risky and offered no assurance that her condition would be improved. The words he used to inform her of the risks of surgery were limited to “infection, bleeding, nerve damage, dural leak, injury to the nerve, and destabilization of the scoliosis requiring fusion.” The written consent form the woman signed prior to surgery listed those same items, and further included the following: “injury to the surrounding structures” and “anesthesia.” The doctor argued that because the words nerve damage encompass the entire spectrum of things from the slightest numbness to devastating injury, those words satisfied the medical standard of care for reasonably informing the patient of the possibility of paralysis and loss of bowel and bladder control. The woman presented expert testimony that “injury to the nerve” and “nerve injury” were not medically acceptable ways to inform patients of the risk of being paralyzed from the waist down.


The Fayette Circuit Court gave a separate jury instruction on each theory of liability. Specifically the trial court instructed the jury that with respect to disclosing to the woman the risks and benefits of the surgical operation proposed perform upon her it was the duty of the orthopedic surgeon to exercise the degree of care and skill expected of a reasonably competent physician specializing in orthopedic spine surgery under similar circumstances.


The jury returned verdicts for the orthopedic surgeon on both theories. The Kentucky Court of Appeals affirmed.


The Supreme Court of Kentucky reversed. The court held that the trial court’s jury instructions misstated the law regarding informed consent.


The trial court’s jury instructions misstated the law regarding informed consent. The Kentucky legislature amplified the general duty of a medical provider to obtain a patient’s informed consent with specific conditions for compliance when it passed KRS 304.40-320. KRS 304.40-320 states, “In any action brought for treating, examining, or operating on a claimant wherein the claimant’s informed consent is an element, the claimant’s informed consent shall be deemed to have been given where: (1) The action of the health care provider in obtaining the consent of the patient or another person authorized to give consent for the patient was in accordance with the accepted standard of medical or dental practice among members of the profession with similar training and experience; and (2) A reasonable individual, from the information provided by the health care provider under the circumstances, would have a general understanding of the procedure and medically or dentally acceptable alternative procedures or treatments and substantial risks and hazards inherent in the proposed treatment or procedures which are recognized among other health care providers who perform similar treatments or procedures[.]”Construed in accordance with its plain terms and obvious meaning, in an applicable civil action where informed consent is an issue, a medical treatment provider has satisfied the duty to obtain the patient’s consent only if both provisions are met. By failing to incorporate the “general understanding” component of the duty provided in Subsection (2), the instruction given by the trial court did not accurately set forth the applicable law. The jury had to be made aware that, regardless of whether the woman personally understood that she faced the risk of paralysis, the orthopedic surgeon’s warning was adequate if “a reasonable individual” would have “a general understanding” that paralysis was a possible outcome.


The Supreme Court of Kentucky reversed the trial court’s jury instructions regarding the law of informed consent.


See: Sargent v. Shaffer, 2015 WL 4967135 (Ky., August 20, 2015) (not designated for publication).


See also Medical Law Perspectives, October 2014 Report: Backaches and Court Battles: When Chronic Back Pain Leads to Litigation