Court Permits Expert Testimony in Case Concerning Lack of Informed Consent

DOWNS v. TRIAS (S. Ct. Conn., Aug. 21, 2012)

The plaintiff alleged that the negligence of the defendant, a gynecologist, resulted in the plaintiff developing ovarian cancer. The plaintiff had an extensive family history of breast cancer which led her to undergo a bilateral mastectomy in 1981 at age 22 to reduce her cancer risk. In 2005, the plaintiff also underwent a partial hysterectomy to remedy a uterine fibroid condition caused by tumors that are ordinarily noncancerous. The plaintiff’s cervix and ovaries were not removed. The defendant, who had treated the plaintiff for the prior 20 years, performed the surgery. Prior to the surgery, the defendant advised the plaintiff that although she had an extensive family history of breast cancer, that history, unless coupled with genetic testing which the plaintiff did not have performed, did not point to an increased risk of ovarian cancer. The defendant advised the plaintiff that there was no reason to remove her ovaries. Approximately one year after the surgery, the plaintiff was diagnosed with late stage ovarian cancer which had spread to her abdomen. At the time of her hysterectomy, the plaintiff did not have ovarian cancer. Nevertheless, ifher ovaries had been prophylactically removed at that time, she would not have developed the cancer.

Before trial, the defendant moved to preclude expert testimony regarding the professional standards governing the defendant’s duty to inform the plaintiff of her cancer risk and to give related advice, arguing that such expert testimony was inadmissible because the case solely involved the duty to obtain informed consent, which was governed by a lay standard of care. The trial court denied the motion and permitted the plaintiff’s experts to testify that the defendant had failed to adhere to the applicable standard of care which required him to appreciate the plaintiff’s elevated risk of ovarian cancer, to warn her of this risk, and to recommend that she have her ovaries removed to mitigate this risk, and to document that he had done so. After a plaintiff’s verdict was rendered, the defendant appealed.

The Connecticut Supreme Court affirmed the trial court’s decision to permit the expert testimony, finding that the plaintiff’s complaint alleged medical negligence as well as a claim of lack of informed consent. The court noted the distinction between the two types of cases. An informed consent case is governed by a lay standard of materiality in which a physician is obligated to disclose “material” information, or information that a reasonable patient would have found material for making a decision whether to embark upon a contemplated course of therapy. Expert testimony is not required to determine whether a physician’s disclosure satisfies the lay “materiality” test. In contrast, a medical negligence case requires proof of the breach of the standard of care, which required expert testimony in order to establish what the professional standard of care is.

Thus, a physician has both the duty to exercise medical care in accordance with the prevailing professional standards and a duty to provide patients with material information concerning a proposed course of treatment. The present case involved the relationship between the two obligations and whether a physician may be found liable for breaching the standard of care by failing to provide a patient with information. The court answered this question in the affirmative, noting that a physician has a professional duty to possess or obtain certain medical knowledge as well as an additional “lay” duty to communicate a subset of that information to the patient. A physician who fails to apprise a patient of a certain fact may therefore, in appropriate circumstances, be held liable for failing to know the fact in the first place (medical negligence) and for failing to convey the fact to the patient for consideration in making medical treatment decisions (lack of informed consent).

Impact: This case illustrates that although medical negligence and lack of informed consent are separate causes of action, the same set of facts can give rise to both causes of action.