Court: District Court of Appeal of Florida; July 31, 2002; Florida; State Appellate Court
The case, 823 So.2d 215 (2002), involves Carl Gouveia, the appellant, against F. Leigh Phillips, M.D., his medical practice, and Cosmeplast Corp., the appellees. The District Court of Appeal of Florida, Fourth District, issued a corrected opinion on July 31, 2002, following the withdrawal of a prior opinion. The case stems from an incident on June 1994, where Gouveia, an artist, suffered severe injuries to his right hand in a car accident. After being transported to the hospital, he was under the influence of alcohol and cannabis.
Dr. Phillips, the surgeon, was not the initial doctor but was called later. A nurse communicated with him but did not mention amputation during their conversation. Gouveia signed a preprinted consent form without being informed of the specific procedures, including the possibility of amputation. Evidence suggests that the time of his signature may have been altered to appear as if it were signed after the surgeon's arrival.
When Dr. Phillips arrived, he allegedly did not inform Gouveia about the potential for amputation, despite Gouveia expressing his desire to preserve his fingers due to his profession. The surgeon claimed he communicated the possibility of amputation, but Gouveia maintains he was not adequately informed of the surgery's nature, alternatives, or risks. As a result, Gouveia filed a lawsuit over two years later, alleging negligence and that his consent was neither "full" nor "informed," arguing he would not have consented had he been properly informed. The case will require retrial due to the ambiguity surrounding consent and communication regarding the surgical procedure.
The patient presented three alternative claims at trial against the surgeon:
A. Allegations of negligence in the surgical procedure, potentially criticizing the surgeon's decision regarding amputation versus less drastic alternatives and the overall skill of the surgeon.
B. A challenge to the validity of his consent, arguing that the surgeon sought consent while the patient was intoxicated from alcohol and cannabis, which should have led the surgeon to either forgo the surgery or obtain consent in a different manner.
C. An assertion that the surgeon failed to disclose the possibility of amputation, resulting in the patient signing the consent form without being adequately informed.
Claims B and C specifically address issues of informed consent, highlighting a failure in communication. During discovery, an expert witness, Dr. Garrod, was questioned about the informed consent issue but stated he had no opinion or recollection regarding the adequacy of the consent process or discussions about amputation with the patient and his mother. Dr. Garrod noted the patient's emotional reaction post-surgery, feeling misled about the extent of his injuries and the resulting amputations.
No specific issues were raised regarding the handling of informed consent during a deposition, where the patient’s lawyer did not question Dr. Garrod about his statements on the expert witness's intended use at trial. The term "informed consent" was not clarified, particularly in the context of obtaining consent from a visibly intoxicated and injured patient. At trial, the plaintiff sought to introduce Dr. Garrod’s testimony on whether consent could be appropriately obtained from someone under the influence of substances, which the surgeon opposed, citing Dr. Garrod's prior disavowal of any opinion on informed consent. The surgeon claimed the introduction of this testimony was an attempt to ambush him. The plaintiff contended that his inquiry was about the standard for obtaining consent in such circumstances, not about whether the plaintiff's consent was adequately informed.
The trial judge sided with the surgeon, excluding Dr. Garrod's testimony based on earlier deposition coverage. The plaintiff later offered testimony stating that it is generally inappropriate to obtain informed consent from a patient impaired by substances. The surgeon subsequently moved for a directed verdict on the informed consent issue, leading the trial judge to rule that the plaintiff failed to present expert testimony on the disclosure standard. Consequently, only one claim was submitted to the jury, which resulted in a defense verdict. On appeal, the plaintiff challenged the trial court's exclusion of Dr. Garrod's testimony regarding consent standards and the directed verdict on the patient's consent to amputation. The appellate court found no error in the exclusion but determined there was an error regarding the directed verdict, thus reversing that aspect for further trial.
The trial court excluded testimony regarding the standard of practice for obtaining consent from intoxicated patients, leading to a directed verdict on that claim. The surgeon's counsel objected to the plaintiff's attempt to introduce expert testimony from Dr. Garrod, arguing that the plaintiff had not disclosed any opinions on informed consent during pretrial depositions, thus introducing surprise evidence at trial. The plaintiff's counsel contended that the inquiry was based on hypothetical scenarios from prior testimonies and emphasized uncertainty about the court's pretrial rulings on issues related to alcohol and drug use.
The legal framework for this exclusion stems from Florida case law, particularly Binger v. King Pest Control and subsequent cases, which assert that parties must disclose significant changes in expert opinions before trial. The court's discretion in these matters is guided by the principle that allowing undisclosed opinions can prejudice the opposing party. The ruling underscores the importance of clear communication regarding an expert's intended testimony during depositions. In this instance, the plaintiff failed to clarify Dr. Garrod's expected role, and the term "informed consent," as used in the depositions, could have included the issue in question but lacked explicit definition to limit its scope.
Plaintiff failed to stipulate that a witness would offer an opinion on claim B, which could have been established through deposition questioning. The lack of clarity regarding the term "informed consent" among the parties may lead to confusion at trial. Plaintiff aimed to address how a proper disclosure by the doctor could be affected by the patient's impaired judgment due to substance use. The trial judge excluded the proposed testimony, citing surprise and prejudice to the defendant as it materially deviated from prior deposition statements. The focus shifted to the patient's capacity to consent rather than the legality of the doctor's actions. The judge's discretion in excluding Dr. Garrod's opinion was upheld, as it was reasonable to conclude that the defense was prejudiced. Moreover, the trial court directed a verdict on the informed consent issue, emphasizing that expert testimony is necessary to determine if the surgeon adequately informed the plaintiff about the possibility of amputation. The plaintiff contended that the factual dispute regarding the surgeon's disclosure should not have been removed from jury consideration, arguing that without the surgeon's communication about amputation, consent could not be established. The historical context of medical malpractice claims reveals that common law did not require expert testimony to support claims for unauthorized medical procedures.
By the early twentieth century, battery had become a recognized legal claim in the U.S. for patients against physicians who performed surgeries without consent. Notable cases include Mohr v. Williams (1905), which clarified that intent to injure was unnecessary for an assault claim related to unauthorized surgery, and Pratt v. Davis (1906), which affirmed that such actions constituted trespass. Judge Cardozo's opinion in Schloendorff v. Society of New York Hospital (1914) emphasized a patient's right to control their own body, asserting that unauthorized surgery constitutes an assault and is grounds for damages without the need for expert testimony.
The decision in Chambers v. Nottebaum (1957) upheld this principle when a physician ignored a patient's explicit instruction regarding anesthesia, allowing the patient’s assault claim to proceed without expert evidence. The subsequent case of Zaretsky v. Jacobson (1958) reinforced that expert testimony is not necessary to support claims of lack of consent in malpractice cases, focusing instead on whether consent was given and whether the procedure was performed negligently.
The legal doctrine of informed consent began evolving post-World War II, influenced by the Nuremberg trials. This concept was first applied in Salgo v. Leland Stanford Jr. University Board of Trustees (1957), where the court ruled that a physician must disclose all relevant facts necessary for informed patient consent and cannot downplay risks to secure consent. This established a duty for physicians to prioritize patient welfare and ensure patients are fully informed before agreeing to treatment.
The excerpt outlines the legal requirements and implications surrounding informed consent in surgical procedures, emphasizing the need for proper medical disclosure by physicians. It highlights that excessive detail about risks may lead to patient anxiety, potentially affecting their decision to undergo surgery. The court's introduction of the disclosure requirement supports a valid consent, although it does not explicitly mention "informed consent." The case Bowers v. Talmage is cited as a pivotal moment where Florida recognized the Salgo doctrine of informed consent, reversing a summary judgment due to conflicting evidence about the adequacy of the informed consent provided by the physician. This case established the necessity for expert testimony regarding the standard of medical disclosure.
Subsequent cases, such as Visingardi v. Tirone and Ditlow v. Kaplan, reinforced the need for expert evidence to determine whether consent was adequately informed based on community medical standards. The distinction between lack of consent and inadequate disclosure was further clarified in Meretsky v. Ellenby, where the court evaluated claims of battery versus informed consent. The excerpt emphasizes the evolving legal landscape regarding informed consent, indicating that while expert testimony is critical in claims targeting inadequate disclosure, it is not required for claims asserting a lack of consent altogether.
The court cited Chambers v. Nottebaum, emphasizing that a doctor cannot perform surgery without the patient's express or implied consent or in violation of the patient's instructions. It reversed the directed verdict, clarifying that the trial court mistakenly believed expert medical testimony was necessary for the plaintiff to prove the doctor acted without consent or against the patient's instructions. The court distinguished between claims of absence of consent and absence of informed consent, stating that expert testimony is not required for claims of non-consent. In contrast, informed consent cases require expert testimony to assess whether the physician provided adequate disclosure for the patient to make an informed decision. The case of Meretsky was highlighted, which addresses the issue of whether any consent was given, a matter appropriate for jury determination. Additionally, the court referenced Atkins v. Humes, which noted that while expert testimony is typically needed in medical malpractice cases, juries can often make determinations based on common sense and judgment in clear negligence cases. Examples were provided to illustrate situations where a jury could reasonably conclude negligence without expert input.
Jurors may infer a defendant's negligence in administering approved medical treatment without direct expert testimony, even in cases where expert testimony is typically required for causation. The court reversed a summary judgment, highlighting that medical expert testimony is necessary only when lay jurors cannot decide the issue based on their ordinary knowledge and experience. The Atkins decision emphasizes that not all medical malpractice issues require expert testimony. Distinctions must be understood between different types of medical malpractice claims, such as a lack of consent versus challenges to medical judgment regarding informed consent.
In cases where a patient claims a lack of consent to surgery, expert testimony is not required, as demonstrated by Florida cases like Zaretsky and others from outside Florida, such as Grabowski and Tom. While informed consent cases necessitate expert testimony to evaluate the adequacy of disclosure, claims based on lack of consent are treated differently and hinge on the patient's autonomy rather than medical standards. Thus, while expert testimony is essential for assessing the sufficiency of medical disclosures, it is unnecessary for determining whether consent was sought. The law aims to ensure that patients make informed decisions about medical procedures, with practitioners obligated to provide relevant information about risks and benefits.
The jury is capable of determining whether the surgeon disclosed the possibility of amputation to the patient without speculation, as this is a standard credibility issue. In this case, the directed verdict motion pertains to the patient's claim of not consenting to the amputation. The surgeon argues that amputation was necessary and claims he informed the patient of this. However, the patient contradicts this, stating he was not informed of the amputation consideration prior to surgery. These conflicting accounts present a jury issue regarding the patient's knowledge and consent for the amputation. The defense has not demonstrated that expert testimony is relevant to resolving this conflict. The trial court incorrectly conflated the concepts of no-consent and informed consent, leading to the erroneous conclusion that expert testimony was needed to establish whether the patient consented at all. The distinction between whether any consent was given and whether informed consent was obtained must be maintained. Expert testimony is only necessary when the patient concedes to having consented but disputes the adequacy of the information provided by the surgeon. Therefore, the trial judge should have recognized that the issue of consent differs fundamentally from the informed consent requirement, indicating that expert testimony is unnecessary in cases where the patient claims no consent was given.
Conflicting testimonies from the patient and surgeon raise questions regarding the authenticity of the consent form, suggesting it may have been altered after the patient signed it. This creates a significant jury issue concerning whether the plaintiff consented to a potential amputation. The appellate court highlights the need for a new trial to address this issue, noting that the trial court struggled with the plaintiff's unclear arguments regarding informed consent, which obscured the underlying battery claim. Judge May expresses concern that the battery claim was inadequately presented, affecting the trial court's ability to address it properly. Despite the ambiguity in the complaint, both parties were aware of the critical issues regarding consent prior to and during the trial. The appellate court concludes that the issues of consent and the potential amputation should be resolved by a jury.
A plaintiff in a civil action may not recover damages for personal injury or property loss if the trier of fact determines that, at the time of the injury, the plaintiff was impaired by alcohol or drugs (blood alcohol level of 0.08% or higher) and was more than 50% at fault due to this impairment, as per § 768.36, Fla. Stat. 2000. The statute became effective on October 1, 1999. In the current case, evidence suggests that discussions occurred between the surgeon or hospital staff and the patient's mother concerning surgical consent, but no one has addressed the parent's authority to consent for an emancipated adult child who appears temporarily incompetent.
A valid consent signature must come from an individual who is mentally and physically competent, as stated in § 766.103(4)(b), Fla. Stat. 2000. The excerpt references scholarly articles on informed consent, indicating that medical expert testimony may be contested but focuses on defense witnesses. It cites a dissenting opinion in Ritz v. Florida Patient's Compensation Fund that highlights the plaintiff's burden to establish a prima facie case of medical negligence regarding informed consent. The dissent argues that expert testimony is unnecessary in cases of misrepresentation by a doctor, where the plaintiff's claim hinges on the assertion that they were not adequately informed of surgical risks, specifically the possibility of amputation.
Additionally, § 766.103(3)(a)(2) stipulates that a reasonable individual should understand the procedure and associated risks based on the physician's information. The defense contended that only physician testimony could determine the standard for adding notes to consent forms after a patient's signature. However, it is argued that such issues pertain to jury credibility rather than the medical necessity of disclosures. The plaintiff's counsel consistently refers to "informed consent" in the context of whether the plaintiff consented to the surgical amputation, as evidenced in pretrial and appellate documentation.
Obtaining patient consent must align with established medical practice standards within the relevant medical community. The plaintiff conceded that he was not claiming a battery due to a complete lack of consent, clarifying that his consent did not include amputation. This concession does not negate the issue of whether the defendant informed him about the possibility of amputation prior to surgery. The distinction between "want" of consent and "lack" of informed consent may cause confusion in articulating different claims against a physician. It is recommended to specify claims clearly and reserve the term "informed consent" for cases where the patient disputes the physician’s judgment regarding the information necessary for valid consent. Additionally, under Florida Statute 90.702, a qualified expert witness may provide opinion testimony if it aids the fact-finder in understanding evidence or determining facts in issue.
