Originally Published in IDC Quarterly, Fourth Quarter 1995

Testimony of Plaintiff is Proper Support for Element of Causation Under Objective Standard in Informed Consent Case

By:

Linda J. Hay, Esq.

Plaintiff, Meme Coryell, filed a medical malpractice case in Cook County, Illinois against the defendants, Dr. John Smith, her surgeon, and Dr. Smith's employer, Reconstructive Surgery, Ltd. Plaintiff's claim alleged that the defendants were negligent in their failure to obtain her informed consent prior to abdominal surgery. Defendants filed a motion for summary judgment, and the trial court granted defendants' motion. The plaintiff appealed, and the appellate court reversed and remanded the case to the trial court. Coryell v. Smith, et al., __ Ill. App. 3d __, 653 N.E.2d 1317, 210 Ill. Dec. 855 (First Dist., August 1, 1995)(slip op. no. 1-94-1547).

The specific facts of the case, as addressed by the appellate court, showed that the plaintiff sought medical care from the defendants for lower back pain which occasionally interfered with daily activities. Dr. Smith recommended abdominoplasty surgery for her condition which involved undermining the skin and fat on plaintiff's abdominal wall for repair of her weak stomach muscles. In September 1988, plaintiff had the surgery, but post-operatively the incision separated, and an open stomach wound developed which resulted in both an indentation in the area of the wound and accumulated scar tissue. Plaintiff alleged that had Dr. Smith adequately disclosed these risks, she would not have agreed to go ahead with the surgery.

In the trial court, Defendants filed a motion for summary judgment supported by Dr. Smith's affidavit. Plaintiff responded to that motion by asserting that Dr. Smith's affidavit was insufficient to establish a lack of proximate cause so as to entitle them to judgment as a matter of law. Alternatively, plaintiff claimed that her response to defendants' motion had created a genuine issue of material fact sufficient to defeat the motion. In support of her response, plaintiff submitted the affidavit of her expert, who attested that Dr. Smith should have disclosed specific risks of the surgery to the plaintiff, and that the failure to do so was a deviation from the standard of care. Plaintiff also relied on her own deposition testimony in which she stated that she would not have elected to undergo surgery if Dr. Smith had properly advised her of the risks, and explained the reasons that she would have chosen, if properly advised, a non-surgical option. The trial court, in ruling on the motion, found that the plaintiff had failed to present expert evidence to establish that the alleged failure to adequately disclose was the proximate cause of her damages. On that basis, defendants' motion was granted.

On appeal, the First District Appellate Court examined the basic elements of an action for medical malpractice based on a lack of informed consent, and noted that the only element at issue before the court involved the element of proximate cause. The court noted that on this issue of proximate cause in an informed consent action, Illinois followed the majority rule which applies an objective standard to determine whether there is proof of causation, citing to the case of Guebard v. Jabaay, 117 Ill. App. 3d 1, 452 N.E.2d 751 (1983). That standard requires a plaintiff to prove that a reasonably prudent person in the plaintiff's position, after being properly informed, would have refused the proposed treatment.

The court then examined the Illinois case law that has addressed this issue, and found that there was authority requiring expert testimony on the proximate cause issue in such an action, but also found Illinois authority suggesting that expert testimony was not necessarily a requirement in such a case. For guidance on this issue, the court turned to an examination of those California cases cited as authority for Illinois' adoption of the objective standard. The court first reviewed the "seminal" case of Cobbs v. Grant, 8 Cal. 3d 229, 502 P.2d 1, 104 Cal. Rptr. 505 (1972). In Cobbs, the court noted, there was no language to indicate that the objective standard could be satisfied only on expert evidence on proximate causation.

Because the Cobbs court did not specifically address this issue, the Coryell court examined California cases that have interpreted Cobbs and found that those cases have held that expert testimony is not necessarily required, under the objective standard, to weigh the attendant risks of the procedure, the decision not to undergo treatment, and the probability of a successful outcome.

In addition to these considerations, the court noted that expert testimony is, under well-established Illinois law, admissible only if the assessment of alleged malpractice requires the knowledge, skill or training in a technical area outside the comprehension of a lay person. Further, in an "ordinary" malpractice case, expert evidence is required on the issue of causation because that determination usually requires knowledge, skill, or training in a technical area outside the comprehension of lay persons. By contrast, the issue of causation in an informed consent case is based upon what a person of ordinary prudence would do under the same or similar circumstances as those confronted by the plaintiff. On this issue, the court noted, no one would be in a better position than the jury to determine whether a prudent person, after proper disclosure, would have proceeded with the treatment.

While the issues of duty and breach in the informed consent case were not before the Coryell court, in dicta the court noted that the role of expert testimony in such a case is limited due to the very nature of the elements of the cause. Despite this limited role, however, the court stated clearly that expert testimony is needed to establish both elements of duty and breach (such as adequacy of disclosure, nature of the risks, diagnosis, and prognosis) since these matters may be so technical and specialized that lay persons would require expert assistance.

Based on all of these factors, and considering them in a light most favorable to the non-moving plaintiff, the Coryell court found that there was sufficient evidence to establish a factual issue to go to the jury, i.e., whether a reasonably prudent person in her position, properly informed, would have elected to undergo the surgery. Requiring the plaintiff to present expert evidence on causation in an informed consent case was improper, and accordingly, the court reversed and remanded the matter.

The Coryell decision provides a thorough review of the objective standard applicable to proof of causation in informed consent cases, and the rationale for adoption of that standard. The court has explicitly stated the necessity for technical or medical assistance, by expert testimony, in these types of cases on the issue of the physician's duty and what constitutes a breach of that duty. Such testimony would assist in the interpretation and explanation of the diagnosis, the prognosis, and alternative treatments. On the issue of causation, however, the court found that under the objective standard, expert testimony would likely not assist the jury in their determination of whether a reasonable, prudent person would have undergone the procedure, if properly advised, under similar circumstances. By this holding, however, the court has not precluded defendants or plaintiffs from identifying experts on this issue. Certainly under this court's ruling, the most important consideration in whether expert testimony is required is dependent on the manner in which the information, be it technical or medical, assists the trier of fact. Under the Coryell court's holding, the trier of fact may not need such assistance by an expert to ascertain whether a reasonable person, in similar circumstances, would have gone ahead with the procedure.