Last week, the Court of Appeals reinforced the importance of the statutory presumption that a doctor has obtained valid informed consent. The Hauser v. Brookview Women’s Center court affirmed the trial court’s instruction on the presumption over the plaintiff’s objections. In a win for providers everywhere, the Court rejected the plaintiff’s arguments that the presumption was only applicable where there were allegations of fraud, deception, or misrepresentation and that it does not apply where there are allegations that the provider did not explain the alternatives to surgery. The Court also affirmed the exclusion of certain “character” evidence offered by the plaintiff regarding the doctor’s hospital privileges and internet reviews.
In Hauser, the plaintiff sued both the practice and the doctor who had performed her 2009 hysterectomy alleging negligence. The jury entered a judgment in favor of the defendants, and plaintiff appealed.
The plaintiff had been seeing the practice for a bulge in her vaginal wall since 2005, and the defendant doctor since 2006, when he first recommended a total vaginal hysterectomy (TVH). Despite initially agreeing to the TVH in 2006 and receiving the same recommendation in 2007, the plaintiff never scheduled it. By 2008, significant changes in her uterus were apparent, and the TVH was no longer appropriate. The doctor now recommended a laparoscopic assisted vaginal hysterectomy (LAVH) instead. The records for each of the visits since 2006 reflected lengthy discussion between doctor and patient regarding her condition and the recommended treatment. Nonetheless, plaintiff did not decide to proceed with the LAVH until August 2009.
The plaintiff returned to the doctor for a pre-surgical appointment in September 2009. The medical records reflect that the doctor reviewed the surgery in detail with plaintiff at this appointment and that plaintiff elected to proceed “[a]fter a full discussion.” The doctor also gave the plaintiff a pamphlet about the procedure to take with her to review. At the pre-surgical appointment, the plaintiff signed a consent form acknowledging, among other things, that they had discussed the procedure, the options to the procedure, and the risks associated with each. The plaintiff also affirmed that all of her questions had been answered. The consent form also acknowledged that unexpected events could happen that might require a different procedure and gave permission for “such surgical procedures determined to be necessary.”
Two days later, the doctor performed the hysterectomy. During surgery, it became apparent to the doctor that her uterus was much larger than was evident on the physical exam and that a LAVH was no longer feasible. He then performed a total abdominal hysterectomy instead. After the surgery, Plaintiff suffered from a blood clot leading to severe complications. However, she survived and was discharged 10 days later.
At trial, the plaintiff claimed that she had not consented to the total abdominal hysterectomy and that the doctor had not explained to her the alternatives to surgery. The defense asked for an instruction under N.C.G.S. § 90-21.13, which provides that a written consent which meets certain standards and is signed by the patient is presumed to be a valid consent. The statute goes on to say:
This presumption, however, may be subject to rebuttal only upon proof that such consent was obtained by fraud, deception, or misrepresentation of a material fact. A consent that meets the foregoing standards, that is given by a patient . . . who under all the surrounding circumstances has capacity to make and communicate health care decisions, is a valid consent.
Plaintiff objected to the proposed instruction, arguing that because her allegations were that the doctor had never explained the alternatives to surgery to plaintiff, the presumption did not come into play.
Both the trial court and the Court of Appeals rejected that argument. The Court first noted that because the instruction recited the statute it was a correct statement of the law.
It then concluded that the evidence supported the instruction for two primary reasons. First, while the plaintiff focused on the fact that the consent form specifically referenced the LAVH, the Court noted that the consent form also specifically gave permission for “such [other] surgical procedures determined to be necessary.”
Second, the Court concluded that there was evidence that the consent met the statutory standards set forth in N.C.G.S. § 90-21.13(a) such that the consent is presumed valid. The evidence supported a conclusion that the doctor followed the standard of care in obtaining informed consent as required by § 90-21.13(a)(1) because defendants’ standard of care experts testified that the counseling reflected in the records throughout her many visits, as well as the pamphlet, met the standard of care. The evidence also supported a conclusion that a reasonable person would have understood the procedure and most associated risks as required by § 90-21.13(a)(2) because the records reflected ongoing discussions of these factors, and the pamphlet she was given addressed both the possibility of clots as well as the possibility that an abdominal hysterectomy might be required instead. Furthermore, the consent form signed by the plaintiff indicated that she understood these discussions.
Plaintiff nonetheless likened her consent to patient agreeing to minor left hand surgery but receiving major surgery on her right foot, saying that consent to one cannot realistically amount to consent to the other. However, based on expert testimony, the Court concluded “that the ‘actual consent’ evinced by [the plaintiff’s] signature on the Consent form was to ‘remove the uterus.’” If the defendant doctor had removed her gall bladder instead, her argument might carry weight, the Court reasoned. But under the circumstances, the presumption instruction was appropriate.
The Court also affirmed the trial court’s exclusion of evidence relating to restrictions placed on the doctor’s hospital privileges four years after the surgery, as well as evidence of internet reviews of his care. On direct examination, the doctor testified regarding his medical career and reputation. Plaintiff claimed this testimony opened the door to cross-examination on three issues: (1) ten instances of surgical complications he had in the two years prior to plaintiff’s surgery, (2) restrictions imposed on his privileges in 2013 requiring he have assistance on difficult cases after a review of his cases revealed that his patients lost more blood than was typical, and (3) two negative internet reviews.
The trial court allowed the cross-examination into the surgical complications but excluded questions on the other two issues under Rule 403. The trial court concluded that the evidence was highly prejudicial with only scant relevance to the case.
On appeal, the Court noted that the plaintiff made no argument that the excluded evidence was admissible under either Rule 404(b) (allowing evidence of other wrongful evidence for certain limited purposes) or Rule 608 (allowing evidence of the witness’ reputation for truthfulness or untruthfulness), but simply that the doctor had opened the door to the evidence by testifying about his academic and medical career path. The Court noted that the evidence did not rebut that testimony, and therefore the doctor had not opened the door.
The Court also noted that the plaintiff had not met her burden of showing that the trial judge’s ruling that the risk of prejudice outweighed the relevance was not the result of a reasoned decision.
Finally, the Court concluded that even if the plaintiff had met her burden, she could not demonstrate prejudice as a result of the decision, pointing to the evidence of ten prior instances of complications that the trial court did allow. Although the Court’s reasoning is not explicit, presumably its conclusion is based on a determination that the evidence of prior complications was much more prejudicial to the doctor and that if such evidence did not sway the jury, the arguably less relevant evidence was unlikely to have any impact.
The Hauser opinion illustrates several valuable tools available to the lawyer defending medical malpractice claims. Most significantly, the opinion confirms that there are only very narrow ways (proving it was obtained through fraud, deception, or misrepresentation) to overcome an otherwise valid consent. If the written evidence of consent is signed by the patient, the patient will generally not be allowed to avoid the statements contained in the form. Because a well-written consent form is binding, it is incumbent on patients to read them carefully before signing. The opinion also reinforces that a party does not kick open the door to any and all character evidence by offering some evidence regarding the doctor’s background. While decisions about what kind of character evidence a party should offer in direct examinations still require careful balancing, it does give a party some freedom to offer certain background information without fearing that matters that only remotely touch on the witness’ evidence will become admissible.