Berger
DOVER, Del. (Legal Newsline) -- The Delaware Supreme Court, in a ruling this week, concluded that proof of what a reasonable person would have done is required to establish causation.
In July 2007, Dr. John Goodill performed a bronchoscopy with a transbronchial biopsy on Muriel Stewart. Stewart was not informed that there was a one in 1,000 risk of death. That is, a magnitude of risk 500 times greater than the risk of death from general anesthesia.
Stewart died as a result of the procedure. Lashanda Spencer filed a lawsuit against Goodill, claiming he violated the state's informed consent statute by not telling Stewart that there was a risk of death.
After a three-day trial, the jury found that Spencer failed to prove causation, and the New Castle County Superior Court entered judgment in favor of Goodill. Spencer filed an appeal with the state's high court.
At issue, the Court said, is whether the patient must prove not only the complication was a material, undisclosed risk of the treatment, but also that a reasonable person, if told about the risk, would have declined the treatment.
The Court, in its 11-page opinion filed April 6, affirmed the lower court's judgment. Justice Carolyn Berger authored the Court's opinion.
Spencer, the Court said, argues that the informed consent statute only requires a plaintiff to establish that the doctor breached the standard of care by failing to provide information customarily given to patients about the procedure, risks, etc.; and a reasonable patient would consider that information material to his or her decision.
Since the statute is unambiguous, she argues that a causation requirement should not be read into it.
But that argument is problematic, the Court said.
First, it assumes that the informed consent statute sets forth all the elements of such a claim.
"With that assumption, it would follow that the statute's failure to include any causation requirement means that there is none," the Court wrote. "But the informed consent statute does not begin by saying something like, 'In an action based on lack of informed consent, plaintiff must show...'
"Rather, it says, 'No recovery of damages based on lack of informed consent shall be allowed in any action for medical negligence unless...'"
Spencer's remaining arguments are "unpersuasive," the Court said.
From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.