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A Strategy for Excluding Evidence of Informed Consent in Medical Negligence Cases in which Lack of Informed Consent is not Asserted by Karl J. Protil, Jr.

Karl J. Protil, Jr. (Shulman, Rogers, Gandal, Pordy & Ecker) is an advocate for victims of medical negligence and personal injury. His practice is devoted to defending the rights of the injured. Mr. Protil is licensed in Maryland, Virginia, the District of Columbia, and various federal courts.

While there are no Maryland deci-

sions directly on point, other courts have held that evidence of informed consent is irrelevant, immaterial and prejudicial when the plaintiff has not claimed lack of informed consent as a basis for medi- cal negligence.1

In Maryland, defendants

often assert an affirmative “defense” of in- formed consent, stating that the plaintiff “was informed of the risks and complica- tions of the procedure and consented to the procedure after being informed of the risks.” Even if not pled as an affirmative defense (and there is no such defense),2 the defendant will testify that the plaintiff was warned of the procedure’s risks and nevertheless consented. At trial, defense counsel will cross-examine your client

1 2

Maryland Rules of Civil Procedure, Rule 2-323(g).

Nor is assumption of risk as an affirmative defense in medical negligence actions. See Maryland Pattern Jury Instruction (Civil), 19:13.

about these issues. Defense experts will proffer opinions about the risks of the procedure, as well as the percentage of cases in which these various “complica- tions” ostensibly occur nationwide. Trial counsel should act vigorously to prevent the introduction of this evidence at every turn. In this article, I encourage plaintiff ’s counsel to:

• File timely motions in limine to exclude such evidence and to renew objections at trial to preserve for appeal any error in admitting such evidence.

• Explore the issue of complications and statistical evidence in discovery and, in particular, during the deposi- tion of the defense experts.

• Refrain from pleading lack of in- formed consent unless your case is strong.

This informed consent issue was raised

in Waller v. Aggarwal, 116 Ohio App.3d 355, 688 N.E.2d 274 (1996). In that

action, the Ohio Court of Appeals held that the trial court erred in admitting evidence of informed consent in a case involving medical negligence. It ruled that informed consent was not a defense to the negligence count because the plain- tiff did not allege that she had not been informed of the risks. Therefore, “the admission of evidence pertaining to the issue [informed consent] and reference to the issue carry great potential for the confusion of the jury.” Id. at 357. The Court further held that the references to informed consent constituted plain error and were prejudicial. Accordingly, the defense verdict was reversed. The informed consent issue was ad-

dressed in a pair of Virginia cases. In Wright v. Kaye, 267 Va. 510, 593 S.E.2d 307 (2004),3

the Virginia Supreme Court

held that the evidence regarding informa- tion the plaintiff received on surgery risks was neither relevant nor material to the issues of standard of care and causation. Id. at 528-529. In Wright, the trial court denied the plaintiff ’s motion in limine to exclude the evidence. In reviewing the trial court’s decision, the Virginia Supreme Court stressed that when in- formed consent is not at issue, evidence of consent is not relevant to prove or disprove negligence. Therefore, the ad- mission of such evidence could confuse the jury and engender prejudice because the jury could conclude, contrary to the law and to the evidence, that consenting to the procedure was tantamount to consent- ing to the injury. Id. at 529. In reaching this well-reasoned holding, the Virginia Supreme Court relied upon Waller. In essence, the Court found that any such evidence was not probative and that its prejudicial effect clearly outweighed any

(Continued on page 22) 3

The Wright case was cited favorably in Hinckley v. Koehler, 606 S.E. 2d 803, 269 Va. 82 (2005), Chandler v. Graffeo, 604 S.E.2d 1, 268 Va. 673 (2004), and Smith v. Irving, 604 S.E. 2d 62, 268 Va. 496 (2004).

20 Trial Reporter Summer 2006

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