Saturday, April 01, 2006
Nebraska Supreme Court (J. Connolly) rules out evidence of doctor's disciplinary history in malpractice case alleging uninformed consentCurran v. Buser, 271 Neb. 332 Filed March 31, 2006. No. S-04-1303. District Court dismissed med mal case where plaintiff alleged his surgery was without informed consent because the doctor had not disclosed his disciplinary history. Supreme Court rejects this"material risk" theory of informed consent, that is what are particular risks as to the doctor, and favors the "professional risk" doctrine of informed consent, that is what the standard of care would be for similary situated doctors in that locality. The Nebraska medical hospital liability act adopts the "professional theory" for its standard of care and the evidence required to prove the standard of care and it adopts a two-prong test for causation. The first prong uses an objective standard to evaluate the plaintiff's decision to forgo the surgery, while the second requires proof that the lack of informed consent proximately caused the injury and damages. Although our statutory framework is somewhat unique, we note that other professional theory jurisdictions also use objective standards for causation. See, e.g., Funke v. Fieldman, 212 Kan. 524, 512 P.2d 539 (1973). Under §§ 44-2816 and 44-2820, consent is informed when a doctor advises a patient of the risks in the same manner as doctors in similar localities and under similar circumstances ordinarily would. However, before a plaintiff may recover any damages sustained, the plaintiff must prove by a preponderance of the evidence that a reasonably prudent person in the plaintiff's position would not have undergone the treatment if he or she were "properly informed" and that his or her injuries were proximately caused by the lack of informed consent. Although § 44-2820 does not define proper information, when read in conjunction with § 44-2816, a patient must be properly informed under § 44-2816. Under this framework, the Plaintiff must first had to prove by expert testimony that doctors in similar locations and situations would ordinarily disclose their disciplinary history. After establishing the standard of care, thePlaintiff must next prove that Defendant deviated from that standard. To prove causation, Plaintiff must prove both that a reasonable person in their situation would have refused the surgery if Defendant had properly informed them under the standard and that the lack of information proximately caused the injury sustained and damages alleged. The statute's requirements are cumulative; thus, in order to proceed to the next step, the plaintiff must prove the one before it.
Posted by stan_sipple at 7:55 AM