McDaniel et al v. UT Medical Group, Inc.
ORDER granting 52 Motion in Limine. Signed by Magistrate Judge Tu M. Pham on 2/7/2018. (Pham, Tu)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
CHARLES MARK McDANIEL, and
his wife, MELODY McDANIEL,
UT MEDICAL GROUP, INC.,
ORDER GRANTING PLAINTIFFS’ MOTION TO EXCLUDE EVIDENCE OF
McDaniels’ motion to exclude any evidence relating to informed
consent, filed on January 22, 2018.
(ECF No. 52.)
Medical Group, Inc. (“UTMG”) filed a response on January 29,
(ECF No. 72.)
On February 5, 2018, the court held a
McDaniels’ motion is GRANTED.
evidence on the grounds that it is irrelevant to proving or
standard of care when he performed the post-operative care at
issue in this case.
They also argue that the evidence is overly
prejudicial and may confuse the jury.
UTMG counters that this evidence is crucial to its defense
that the infection Charles McDaniel developed was a known postoperative risk of the surgery Dr. Behrman performed.
medical records in the case are admissible, and those records
include informed consent forms.
Finally, it argues the jury may
be confused if it has access to only certain consent forms but
Instead of excluding this evidence, UTMG asks the
evidence of informed consent to be consent to negligence.
“Evidence is relevant if it has any tendency to make a fact
more or less probable than it would be without the evidence; and
the fact is of consequence in determining the action.”
Courts are to exclude even relevant evidence if “its
probative value is substantially outweighed by a danger of . . .
unfair prejudice, confusing the issues, [or] misleading the jury
. . .”
Fed. R. Evid. 403.
The parties have not cited a
reported federal case analyzing the relevancy of evidence of
informed consent in a case where a plaintiff does not allege
failure to obtain informed consent.
Tennessee courts have also
(Tenn. Ct. App. Dec. 30, 2013) (affirming, without explanation,
the trial court’s admission of evidence of informed consent in a
evidence of informed consent as irrelevant and prejudicial.
2017); Brady v. Urbas, 111 A.3d 1155, 1162 (Pa. 2015); Fiorucci
v. Chinn, 764 S.E.2d 85, 87 (Va. 2014); Baird v. Owczarek, 93
A.3d 1222, 1232–33 (Del. 2014); Hayes v. Camel, 927 A.2d 880,
889–90 (Conn. 2007); Ehrlich v. Sorokin, 165 A.3d 812, 819–20
Gastrointestinal Assocs., P.C., 883 N.W.2d 404, 410–13 (Neb. Ct.
App. 2016); Matranga v. Par. Anesthesia of Jefferson, LLC, 14448 (La. App. 5 Cir. 5/14/15), 170 So. 3d 1077, 1093; Warren v.
Imperia, 287 P.3d 1128, 1132–33 (Or. Ct. App. 2012); Schwartz v.
Johnson, 49 A.3d 359, 374–75 (Md. Ct. Spec. App. 2012); Waller
v. Aggarwal, 688 N.E.2d 274, 275 (Ohio Ct. App. 1996).
Hodes v. Ireland, No. 2006-SC-000890-DG, 2009 WL 1830758, at *1
(Ky. June 25, 2009) (affirming without explanation that evidence
of informed consent was relevant).
The McDaniels have not alleged that UTMG failed to obtain
Rather, they allege that Dr. Behrman breached
the standard of care.
In this situation,
[k]nowledge by the trier of fact of informed
consent to risk, where lack of conformed [sic] consent
is not an issue, does not help the plaintiff prove
Nor does it help the defendant show he
was not negligent.
In such a case, the admission of
evidence concerning a plaintiff's consent could only
serve to confuse the jury because the jury could
conclude, contrary to the law and the evidence, that
consent to the surgery was tantamount to consent to
the injury which resulted from that surgery.
effect, the jury could conclude that consent amounted
to a waiver, which is plainly wrong.
Wright v. Kaye, 593 S.E.2d 307, 317 (Va. 2004)(citing Waller,
688 N.E.2d at 275–76); see also Brady, 111 A.3d at 1163–64 (“The
jury, for its part, ultimately focused its attention on what
returned a verdict finding that [the doctor] was not negligent.
verdict rested on an improper consideration.”).
Here, the court
finds that any evidence that Charles McDaniel knew about the
risks is irrelevant and prejudicial.
There may be circumstances in which evidence of informed
(noting that evidence of informed consent “may be relevant to
2005)(affirming the trial court’s ruling that the defendant may
present evidence of informed consent to support the argument
that the plaintiff failed to mitigate damages).
court will exclude all evidence of informed consent, including
all consent forms in the medical records.
This order does not prevent UTMG from presenting evidence
of the surgical and post-operative risks.
See Hayes, 927 A.2d
at 890 (“[E]vidence of the risks of a surgical procedure is
relevant in the determination of whether the standard of care
was breached . . .”).
UTMG may present this evidence “in the
form of general testimony by the defendant or nonparty expert
Hillyer, 883 N.W.2d at 416 (citing Hayes, 927 A.2d
evidence of informed consent is GRANTED.
IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
United States Magistrate Judge
February 7, 2018
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?