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

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