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Kentucky Supreme Court clarifies “Informed Consent” jury instruction


Part of the foundation of a doctor-patient relationship is the idea that the patient has the right to refuse a particular medical treatment if he or she is not willing to accept the risks that comes with such treatment. A doctor must adequately inform the patient of the risks of a procedure and obtain the patient’s “informed consent” before proceeding.

Although it sounds simple, deciding exactly what “informed consent” means can be very complex. In a recent case, the Kentucky Court of Appeals was called upon to determine whether a trial court in Fayette County had properly instructed a jury on the issue.

The Facts of the Case

In the case of Sargent v. Shaffer, the plaintiff was a patient who sought treatment from the defendant orthopedic surgeon for ongoing back problems. At the time that the patient began her treatment with the surgeon, she had already had two surgeries on her back and suffered from “foot drop.” After conservative treatment failed, the surgeon performed a lumbar laminectomy and decompression procedure on the patient.

The patient was paralyzed below her waist as a result of the surgery. She sued the surgeon, alleging that he was negligent both in his performance of the surgery and in his alleged failure to adequately inform her of the risks associated with the surgery. The jury found in the surgeon’s favor on both of the plaintiff’s theories of liability.

The Issue on Appeal

Should the trial court’s judgment be set aside because the instructions to the jury misstated the law regarding informed consent?

The Court of Appeals’ Decision

The appellate court answered the question in the affirmative, holding that an error had been made with regard to the jury instructions.

First, the court noted that a trial court must give a requested instruction if the evidence would permit a reasonable juror to make the finding the instruction authorizes. The court then examined whether an appellate court reviewing a trial court’s decision on a jury instruction issue should decide the matter de novo or based on an abuse of discretion. In clarifying its prior rulings, the court decided that the abuse of discretion standard should control an appellate court’s review of whether a trial court gave an instruction that was not supported by the evidence or failed to give an instruction that was supported by the evidence. The content of a jury instruction, however, is an issue of law subject to de novo review on appeal.

In applying the applicable standards to the case, the court found that the informed consent instruction given by the trial court incorrectly incorporated the applicable law, thus failing to guide the jury accurately in its determination of the issue. Comparing the description of the risks as they were actually articulated to the patient and the actual nature of the risks involved, the court could not find that the jury was not prejudiced by the faulty instruction.

According to the court, “in the evidentiary context of the case, the question was whether ‘a reasonable individual’ would generally understand that ‘nerve injury’ included the possibility of [paralysis].” Finding that the jury instructions were inadequate in this regard, the court reversed the lower court’s ruling and remanded the case for a new trial.

To Speak to a Kentucky Medical Negligence Attorney

If you or a loved one has suffered an injury because of what you believe may have been an act of medical malpractice, the Kentucky injury attorneys of English, Lucas, Priest & Owsley can review your case at no charge. To schedule an appointment in our Bowling Green office, call us at 270-781-6500. We handle medical malpractice, nursing home negligence, and medical product liability cases throughout Kentucky, including in Glasgow, Franklin, and Hopkinsville.

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