Spencer v. Goodill, C.A. No. 08C-06-183 RRC (Del. Super. 12/4/2009)
| Decision Date | 04 December 2009 |
| Docket Number | C.A. No. 08C-06-183 RRC. |
| Parties | Lashanda Spencer as Administratrix of the Estate of Muriel Stewart, and Lashanda Spencer Individually, Plaintiff, v. John Goodill, M.D., Defendant. |
| Court | Delaware Superior Court |
Kenneth M. Roseman, Esquire, Kenneth M. Roseman, P.A., Wilmington, Delaware, Attorney for Plaintiff.
Bradley J. Goewert, Esquire and Lorenza A. Wolhar, Esquire, Marshall Dennehey Warner Coleman & Goggin, Wilmington, Delaware, Attorneys for Defendant.
Plaintiff's Motion in Limine arises out of an informed consent claim brought pursuant to 18 Del. C. § 6852 by Plaintiff, Lashanda Spencer, on behalf of Muriel Stewart, her mother ("Decedent"). Plaintiff has alleged that by Defendant not having provided "informed consent" to Plaintiff's decedent prior to a bronchoscopy,1 Defendant committed medical negligence that ultimately caused Decedent's death.2 Plaintiff has also brought a Wrongful Death action pursuant to 10 Del. C. § 3724. At the pretrial conference on November 2, 2009, Plaintiff withdrew her prior allegations of negligence concerning the medical procedure itself performed by Defendant, leaving only the claim of lack of "informed consent" for trial.
Plaintiff's motion raises two interrelated issues.3 The first issue is whether an action based on lack of informed consent requires, as a matter of proximate causation, proof that the patient would not have undergone the medical procedure, at the time consent was given, had proper medical information been provided by the health care provider, despite no explicit requirement of proximate causation in Delaware's Informed Consent Statute.
The second issue, assuming the Court concludes (as it has) that a claimant in an informed consent action must prove, as a matter of proximate causation, that the medical procedure would not have taken place if the claimant had been properly informed of the risks, is whether a claimant must prove that a hypothetical "reasonable patient" in similar circumstances to the claimant would have decided against undergoing the medical procedure (the "objective standard"), or whether the particular claimant in an informed consent action would have decided against the procedure if that particular claimant had been properly informed (the "subjective standard").
This Court now holds that, in an action brought pursuant to the Informed Consent Statute, a claimant must prove that that patient would not have undergone the medical procedure if properly informed. It is not enough, as Plaintiff argues, that, under the Informed Consent Statute, all that is needed to succeed on an informed consent claim, insofar as proximate causation is required, is a showing that the patient was not properly informed of the risks and that the medical procedure caused the injuries or death.
Additionally, this Court holds that in proving proximate causation, Delaware follows the objective standard. In this case, Plaintiff must prove that a hypothetical "reasonable person" in similar circumstances to Decedent would not have consented to the bronchoscopy if properly informed of the risks.
For all the following reasons, Plaintiff's motion in limine is DENIED.
This case stems from the alleged failure of a health care provider to have provided Plaintiff's decedent "informed consent" prior to a medical operation. Plaintiff alleges that on or about July 17, 2007, Defendant provided "negligent medical treatment" to Muriel Stewart, Plaintiff's mother, by failing to have adequately informed her of the risks involved in a bronchoscopy.4 Plaintiff alleges that Decedent needed this information to have made an informed decision, and that Defendant should be held liable in not providing the necessary information. Plaintiff has also brought a wrongful death claim on her own behalf alleging that the death of her mother caused her to suffer "mental anguish."5 The facts pertinent to this motion are not in dispute; the motion raises only questions of law.
Both parties have submitted proposed jury instructions based on the Informed Consent Statute that frame the issue. Plaintiff has requested that the Court give Superior Court Pattern Civil Jury Instruction § 7.2A ("Informed Consent"), which states:
[Lashanda Spencer] alleges that [Dr. Goodill] committed medical negligence by failing to obtain [Muriel Stewart's] informed consent to perform a [bronchoscopy]. "Informed consent" is a patient's consent to a procedure after the healthcare provider has explained both the nature of the proposed procedure or treatment and the risks and alternatives that a reasonable patient would want to know in deciding whether to undergo the procedure or treatment. The explanation must be reasonably understandable to a general lay audience.
You may consider whether the doctor supplied information to the extent customarily given to patients by other healthcare providers in the same or similar field of medicine at the time of the [bronchoscopy]. The doctor doesn't have to advise of hazards that are:
(1) inherent in a treatment, and
(2) are generally known to people of ordinary intelligence and awareness in a position similar to that of [Muriel Stewart].
To prevail on this claim, [Lashanda Spencer] must prove by a preponderance of the evidence:
(1) that before the procedure, [Dr. Goodill] failed to tell [Muriel Stewart] about certain risks of the procedure or alternatives to it; and (2) that a reasonable patient would have considered this information to be important in deciding whether to have the procedure; and
(3) that [Muriel Stewart] has suffered injury as a proximate result of the procedure.6
Defendant has submitted an alternative proposed jury instruction, which differs from Plaintiff's jury instruction only in that Defendant's jury instruction additionally requires the jury to find "that a reasonably prudent patient would have declined to undergo the procedure if [that reasonably prudent patient] had known the risks."
Plaintiff argues that the Informed Consent Statute does not require a plaintiff to prove "causation" in that the Informed Consent Statute "does not require the instant plaintiff to prove that the decedent would not have undergone the fatal medical procedure if she had been informed of the risks of that procedure."7 Plaintiff asserts that the General Assembly did not specifically include this "causation" element in the Informed Consent Statute and that requiring a plaintiff to prove the "additional" element of the above "causation" would "engraft an additional element of proof that was not included by the legislature."8 Plaintiff argues that proximate causation is shown if the claimant is injured or died as a result of a medical procedure about which the claimant was not properly informed.
In response, Defendant argues that Delaware's Informed Consent statute is based on the common law tort of negligence and that causation is not an "additional" element but is an "essential element in any negligence action [including medical negligence]."9 Therefore, Defendant argues that Plaintiff must prove:
"but for" defendant's negligent act, the injury would not have occurred. In the context of an alleged violation of informed consent: but for the physician's failure to advise of the risk of surgery, plaintiff would not have undergone the surgery. Conversely stated, if the plaintiff would have undergone the procedure if adequately informed, causation can not be proven.10
The Court, after initial briefing on this motion was completed, proposed an additional question to the parties:
Assuming only hypothetically that the Court were to agree with Defendant's position that, as to causation, Plaintiff must prove that the decedent would not have had the surgical procedure, does a subjective standard (what would the decedent have done) or an objective standard (what would a reasonable patient have done) apply?
In response, Defendant argues that Delaware follows an objective standard on causation insofar as the jury must determine whether "a reasonably prudent patient would not have undergone the procedure."11 Defendant asserts that "focusing on what a reasonable, prudent person in a similar circumstance would have done in the plaintiff's position having been informed of all the risks . . . [is a flexible standard] and allows consideration of plaintiff's particular facts and circumstances to be considered as it is based upon what a reasonable prudent person in a similar circumstance would do."12
In response, Plaintiff argues, again, that the General Assembly did not intend to add a "causation" requirement to the Informed Consent Statute. Plaintiff asserts that, because the "causation" element does not appear in the statute, "it is impossible to determine whether the legislature intended the issue to be decided by the application of a subjective or objective standard."13 She asserts that Delaware's Informed Consent Statute does not require any showing that a decedent would have "decided differently" if properly informed of the risks.
The first issue before the Court is whether an action based on lack of informed consent requires, as a matter of proximate causation, proof that the patient would not have undergone the medical procedure, at the time consent was given, had proper medical information been provided by the health care provider, despite no explicit requirement of proximate causation in Delaware's Informed Consent Statute.
The tort of informed consent is grounded on the sound principle that every individual should have a basic right...
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