Holley v. Huang

• Decision Date: 12 September 2011
• Docket Number: No. 10CA1187.,10CA1187.
• Citation: 284 P.3d 81
• Parties: Joan L. HOLLEY, Plaintiff–Appellant, v. Linda C. HUANG, M.D., Defendant–Appellee.
• Court: Colorado Court of Appeals

284 P.3d 81

Joan L. HOLLEY, Plaintiff–Appellant,

v.Linda C. HUANG, M.D., Defendant–Appellee.

No. 10CA1187.

Colorado Court of Appeals,

Div. IV.

May 12, 2011.

Certiorari Denied Sept. 12, 2011.

Andrew T. Brake, P.C., Andrew T. Brake, Englewood, Colorado, for Plaintiff–Appellant.

Pryor Johnson Carney Karr Nixon, P.C., Elizabeth C. Moran, David D. Karr, Scott S. Nixon, Greenwood Village, Colorado, for Defendant–Appellee.

Opinion by Judge RUSSEL.

Plaintiff, Joan L. Holley, appeals from the trial court's judgment in favor of defendant, Dr. Linda C. Huang. We affirm.

I. Introduction

Huang performed breast augmentation surgery on Holley. Holley later sued for damages. She did not claim that Huang performed the surgery poorly. Instead, she claimed that Huang failed to obtain an informed consent for the particular procedure—a circumareolar mastopexy—that was used on Holley's right breast.

To prevail on this claim, Holley was required to prove the following:

1. Huang negligently failed to obtain Holley's informed consent before making an incision around the areola to place an implant and to lift Holley's right breast;

2. A reasonable person in the same or similar circumstances as Holley would not have consented to the procedure if given the necessary information; and

3. Huang's negligent failure caused Holley's injuries or damages.¹

After hearing evidence, a jury returned a verdict in Huang's favor. The jury found that Huang did obtain Holley's informed consent before performing the surgery.

Holley now requests a new trial. In support of this request, she presents more than forty arguments. We discuss three of these in detail; we dispose of several others summarily; and we disregard the rest.

II. Arguments Discussed in Detail

Here we discuss two evidentiary rulings and a jury instruction. We conclude that reversal is unwarranted.

A. Expert Opinion

Holley proffered expert opinion to prove that Huang was negligent in failing to document the informed consent. We conclude that the trial court correctly disallowed that testimony.

Colorado law places certain duties on medical doctors. As pertinent here, before performing any medical procedure, a doctor must inform the patient of the procedure's substantial risks and obtain the patient's consent. See Garhart ex rel. Tinsman v. Columbia/Healthone, L.L.C., 95 P.3d 571, 587 (Colo.2004). But the law does not restrict the manner in which these duties may be discharged. A doctor may employ any means of communication—such as conversation, writings, video and audio recordings, or some combination of these—that will yield a properly informed consent.

For purposes of analysis, we accept that doctors routinely memorialize their advisements about the risks of surgical procedures. We accept that doctors routinely obtain patients' consent in writing. And we recognize that doctors have good reasons to do this. (One reason is that careful documentation may forestall the type of dispute that led to this appeal.) But contrary to Holley's view, documentation is not required. See Maercklein v. Smith, 129 Colo. 72, 80, 266 P.2d 1095, 1099 (1954) (although the practice of obtaining a signed authorization is “laudable in every respect,” it is not required); see also

Cooper v. United States, 903 F.Supp. 953, 957 (D.S.C.1995) (the informed consent law of South Carolina “focuses on the content of the information conveyed to the patient and not on the form in which it is provided”); Yahn v. Folse, 639 So.2d 261, 265 (La.Ct.App.1993) (consent need not be written); Patterson v. Van Wiel, 91 N.M. 100, 570 P.2d 931, 934 (Ct.App.1977) (same).

Because documentation is not required, a failure to document does not constitute a failure to meet the standard of care required of doctors in the pertinent professional community. Therefore, the court properly disallowed the proffered expert opinion.

B. Holley's Testimony

Holley wanted to testify that she would never have consented to a circumareolar mastopexy had she been properly informed of its risks. She argued that this testimony would be relevant to establish the second element of her claim. (In other words, it would tend to show that a reasonable person in Holley's circumstances would not have consented if given the requisite information.)

In a pretrial ruling, the trial court excluded Holley's testimony. The court stated that the “proposed testimony is not relevant ... and any minimal probative value attendant to such testimony is outweighed by the risk of prejudice to the defense.” We conclude that the court's ruling was erroneous, but harmless.

1. The ruling was erroneous.

The court misapprehended the logical relevance of Holley's testimony. Although the second element of an informed consent claim incorporates an objective standard, Miller v. Van Newkirk, 628 P.2d 143, 147 (Colo.App.1980), Holley's subjective testimony was probative of that standard. In other words, what Holley would have done is some evidence of what a reasonable person in her position would have done. See Canterbury v. Spence, 464 F.2d 772, 791 (D.C.Cir.1972) (patient's testimony is relevant to show what a reasonable person in the patient's position would have decided if properly informed); Fain v. Smith, 479 So.2d 1150, 1155 (Ala.1985) (patient's hindsight testimony, although not conclusive of the objective test, is “material and relevant and entitled to be considered by the jury”); Sard v. Hardy, 281 Md. 432, 379 A.2d 1014, 1025 (1977) (patient's hindsight testimony about what he would have done is relevant, but not determinative, of the objective test); Nickell v. Gonzalez, 17 Ohio St.3d 136, 477 N.E.2d 1145, 1149 (1985) (hindsight testimony is relevant but not determinative); Fletcher v. Medical University of South Carolina, 390 S.C. 458, 702 S.E.2d 372, 377–78 (App.2010) (patient's testimony is not determinative, but it is some evidence that jurors may consider in light of their own experiences).

Having concluded that Holley's testimony was logically relevant, we must now decide whether the court correctly excluded the evidence under CRE 403. Because the rules of evidence strongly favor the admission of evidence, we must assume the maximum probative value that a reasonable fact finder might give the evidence and the minimum unfair prejudice to be reasonably expected. People v. District Court, 869 P.2d 1281, 1285–86 (Colo.1994); People v. District Court, 785 P.2d 141, 147 (Colo.1990) (same). We conclude that the court abused its discretion because the proffered testimony presented no particular risk of unfair prejudice. See District Court, 785 P.2d at 147 (unfair prejudice refers to the tendency to “suggest a decision on an improper basis, commonly but not necessarily an emotional one, such as sympathy, hatred, contempt, retribution, or horror”).

2. The error was harmless.

To win a new trial, Holley must establish that the court's error affected her substantial rights. SeeCRE 103; C.R.C.P. 61; Bly v. Story, 241 P.3d 529, 535 (Colo.2010). She must show that the decision to exclude her testimony “influenced the outcome of the case or impaired the basic fairness of the trial itself.” Bly, 241 P.3d at 535 (quoting Banek v. Thomas, 733 P.2d 1171, 1178 (Colo.1986)).

We conclude that Holley has failed to make the necessary showing.

The jury found that Holley had been informed of the substantial risks associated with a circumareolar mastopexy. This finding means that Holley's claim failed on the first element. Therefore, the court's error was harmless unless it substantially affected the jury's determination of that first element. (If an informed consent claim fails on its first element, any inquiry into the remaining elements is purely hypothetical.)

After reviewing the record, we are not persuaded that the court's error affected the jury's determination of the first element. Holley testified—directly and repeatedly—that she was not informed of the substantial risks associated with a circumareolar mastopexy. And her lawyer argued that Holley would not have consented if she had been informed. But the jury rejected Holley's position after hearing that (1) Huang likely advised Holley as a matter of habit and practice, (2) Holley had consulted with other doctors who advised her about the risks of a mastopexy, (3) Holley signed a consent form that contained the notation “incision on right side will be around the nipple,” and (4) Holley sought further treatment from Huang, including treatment unrelated to the mastopexy, yet did not mention informed consent for several months.

Under the circumstances, we think that the proffered statement would not have made any difference.

C. Habit Instruction

The court gave the following instruction about habit testimony: “In case of doubt as to what a person has done, it may be considered more probable that he has done what he has been in the habit of doing, than that he acted otherwise.”

Holley contends that this instruction constituted reversible error. We disapprove of the instruction but decline to reverse.

1. Holley's Argument

At trial, Holley objected that the instruction effectively required the jury to credit habit testimony above other types of evidence.² The trial court overruled that objection, noting: “[I]t doesn't direct the jurors that they shall consider [the habit testimony]. It says it may be considered.”

On appeal, Holley appears to reiterate the concerns that she raised at trial. She suggests that the instruction created a presumption and asserts that habit testimony should be treated like all other evidence. She also states (without elaboration) that the instruction “wrongfully emphasized” the habit testimony.

2. Discussion

We reject the narrow argument that Holley presented at trial. As Huang correctly notes, the instruction contains an accurate statement about the relevance of habit testimony. SeeCRE 406; Bloskas v. Murray, 646 P.2d 907, 911 (Colo.1982). And, as the trial court noted, the instruction does not require the jury to...