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Informed consent ruled irrelevant to surgical negligence claim

In Illinois and all other jurisdictions, where a plaintiff loses a medical malpractice case at trial, that claimant may appeal the decision to the appropriate appellate court. Occasionally, the appellate court will reverse the jury verdict and remand the case back for a retrial or other disposition. This can happen in medical malpractice cases that involve the issue of surgical negligence, as well as in many other medical negligence claims.

Recently, in a medical malpractice case in another state, the plaintiff appealed a jury verdict entered in favor of the medical defendants. She appealed the trial judge's refusal to tell the jury that plaintiff could withdraw a written informed consent that had allegedly been given for numerous procedures. The lawsuit was filed against the plaintiff's gastroenterologist regarding an allegedly botched surgical procedure performed during an endoscopy.

The plaintiff had complained of chronic pharyngitis, an inflammation of the throat lining. She also reported feeling something stuck in her throat, but there were no supporting physical findings. During the endoscopy, the surgeon allegedly found nothing wrong with her esophagus. Nonetheless, he then performed an esophageal dilation, which uses a tool to widen the esophagus.

In the process, the surgical tool caused a tear in the plaintiff's esophageal lining, which allegedly resulted in permanent pain and discomfort to her. She allegedly underwent later surgery to try and repair the damage to her esophagus. The essential thrust of the plaintiff's case was that her esophagus was shown to be normal, and the additional procedure was risky and should not have been performed.

The judge refused to explain to the jury that the informed consent paper signed by the plaintiff was not determinative and that the jury could conclude that there was a withdrawal of informed consent under the circumstances. The high court of the state sent the case back for a new trial because the trial court abused its discretion in rejecting a withdrawal instruction. The same result could reasonably be obtained if a case with similar facts and an issue of surgical negligence was litigated here in Illinois.

Source:, "High court reverses medical malpractice verdict involving jury instruction", Sam Knef, May 24, 2017

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