First Judicial District Appellate Court of Illinois Upholds Motion for Directed Verdict in Medical Malpractice Claim
ABSTRACT: Illinois Appellate Court rejected plaintiff's claim that expert testimony is required only to establish applicable standard of care upholding directed verdict in plaintiff's medical malpractice informed consent claim.
In Ludgarda R. Castillo and Richard Castillo v Jeremy Stevens, M.D. and The Center for Athletic Medicine, LTD., 1029 IL App (1st) 172958, the Court reviewed several issues, and held that a plaintiff’s medical expert in a successful informed consent claim must testify to a breach of the applicable standard of care for the allegedly negligently obtained consent.
Ludgarda Castillo sought treatment in 2004 after suffering from right knee pain and was diagnosed with a 17-degree valgus deformity of her right femur. To correct the valgus deformity, defendant Dr. Stevens performed a right distal femoral open wedge osteotomy, but during this procedure the medial cortex fractured. This required Dr. Stevens to intra-operatively install a condylar plate obliquely to achieve the desired degree of correction. The procedure properly aligned the femur to correct the valgus deformity. However, sometime after the procedure, plaintiff was diagnosed as having a nonunion of the femur. Plaintiff underwent a revision surgery in 2005. Although, plaintiff healed from her surgeries, she still had continuing complaints of pain and functional limitation.
In 2011, plaintiff filed suit against Dr. Stevens claiming, among other things: (1) that he failed to advise her of the risks of intra-operative medial cortex fracture and subsequent nonunion; and, (2) that a reasonable person in her position would not have consented to the osteotomy had those risks been fully disclosed to her such that she could understand them. The trial court granted defendant’s motion for directed verdict. It found that plaintiff failed to present any expert testimony that Dr. Stevens failed to comply with the applicable standard of care in how he advised plaintiff of the risks of the procedure. Plaintiff appealed.
On appeal, plaintiff argued that expert testimony was required only to establish the applicable standard of care as to the performance of the procedure, but not for whether a physician failed to give adequate explanation of the risks. Citing to Coryell v. Smith, 274 Ill. App. 3d 543, 545 (1995), the appellate court reviewed the four elements of an informed consent claim: (1) the physician had a duty to disclose material risks; (2) he failed to disclose or inadequately disclosed those risks; (3) as a direct and proximate result of the failure to disclose, the patient consented to treatment she otherwise would not have consented to; and, (4) plaintiff was injured by the proposed treatment. Id at 546.
The appellate court found that it was clear from the record that plaintiff presented expert testimony only to establish: 1) the standard of care was that non-surgical treatment should been pursued instead of surgery; and, 2) generally as to what surgical risks Dr. Stevens had a duty to disclose. However, plaintiff failed to provide expert testimony that Dr. Stevens failed to comply with applicable standard of care as to the manner in which he was to advise plaintiff of the risks of the surgery. Unlike the Coryell case, which held that once an expert establishes the applicable standard of care, the jury is equipped to determine the third element of proximate cause, this court focused on both the second and third elements of the informed consent claim.
The appellate court agreed with the trial court’s ruling that it is a well-established principle of law that a plaintiff’s expert was required to testify not only to the standard of care as to the medical care at issue, but also as to the details which the physician failed to fully discuss with plaintiff to show the standard of care was not met in disclosing to plaintiff the material risks of the treatment. The appellate court clearly rejected plaintiff’s subjective testimony that she was not fully informed as to the risks, part of which her concession that Dr. Stevens could have told her more about the procedure than she remembered.
This opinion should provide clarity on the issue of the necessity of expert testimony on whether a physician properly obtained informed consent, which is an objective standard, based on the consensus of medical practitioners. If the court had reversed the directed verdict for the physician, it would have potentially opened the floodgates for claims based solely on a lay person’s subjective perspective on their lack of understanding of the risks.
This intermediate appellate court opinion may be subject to further appellate review by the Illinois Supreme Court.