McDaniel et al v. UT Medical Group, Inc.
Filing
102
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
WESTERN DIVISION
CHARLES MARK McDANIEL, and
his wife, MELODY McDANIEL,
)
)
)
)
)
)
)
)
)
)
Plaintiffs,
v.
UT MEDICAL GROUP, INC.,
Defendant.
16-cv-2895-TMP
ORDER GRANTING PLAINTIFFS’ MOTION TO EXCLUDE EVIDENCE OF
INFORMED CONSENT
Before
the
court
is
plaintiffs
Charles
and
Melody
McDaniels’ motion to exclude any evidence relating to informed
consent, filed on January 22, 2018.
(ECF No. 52.)
Defendant UT
Medical Group, Inc. (“UTMG”) filed a response on January 29,
2018.
(ECF No. 72.)
pretrial
argued.
conference,
(ECF
No.
On February 5, 2018, the court held a
at
which
82.)
this
For
the
and
other
following
motions
reasons,
were
the
McDaniels’ motion is GRANTED.
The
McDaniels
move
for
exclusion
of
informed
consent
evidence on the grounds that it is irrelevant to proving or
disproving
whether
Dr.
Behrman
deviated
from
the
pertinent
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.
points
out
that
the
parties
already
agreed
that
It further
all
of
the
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
not others.
court
to
Instead of excluding this evidence, UTMG asks the
instruct
the
jury
that
they
may
not
construe
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.”
Evid. 401.
Fed. R.
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
provided
little
matter.
Lanford,
No.
guidance
on
this
M2012-02073-COA-R3CV,
-2-
2013
WL
See
Bearden
6908938,
at
v.
*28
(Tenn. Ct. App. Dec. 30, 2013) (affirming, without explanation,
the trial court’s admission of evidence of informed consent in a
case
where
informed
addressed
the
plaintiff
consent).
this
did
However,
issue
have
not
other
allege
state
overwhelmingly
a
claim
courts
based
that
favored
v.
P.B.
Patel,
M.D.,
P.C.,
517
S.W.3d
520,
have
excluding
evidence of informed consent as irrelevant and prejudicial.
Wilson
on
526
See
(Mo.
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
(N.J.
Super.
Ct.
App.
Div.
2017);
Hillyer
v.
Midwest
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).
But see
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
informed consent.
Rather, they allege that Dr. Behrman breached
the standard of care.
In this situation,
-3-
[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
negligence.
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.
In
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
[the
plaintiff]
‘had
agreed
to’
and,
shortly
thereafter,
returned a verdict finding that [the doctor] was not negligent.
There
is
a
substantial
possibility,
then,
that
verdict rested on an improper consideration.”).
the
jury's
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
consent
could
be
admissible.
See
Brady,
111
A.3d
at
1161
(noting that evidence of informed consent “may be relevant to
the
question
requires
patient”);
that
of
negligence
the
Holley
doctor
v.
if
.
.
discuss
Pambianco,
.
the
standard
of
risks
with
certain
613
S.E.2d
425,
428
care
the
(Va.
2005)(affirming the trial court’s ruling that the defendant may
present evidence of informed consent to support the argument
-4-
that the plaintiff failed to mitigate damages).
However, those
circumstances
Therefore,
are
not
present
in
this
case.
the
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
witnesses.”
Hillyer, 883 N.W.2d at 416 (citing Hayes, 927 A.2d
at 890.)
For
these
reasons,
the
McDaniels’
motion
to
exclude
evidence of informed consent is GRANTED.
IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
United States Magistrate Judge
February 7, 2018
Date
-5-
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