A physician has a legal and ethical duty to advise a patient of the material risks of a proposed surgical procedure. When a physician fails to obtain the patient’s “informed consent,” and the patient suffers injury as a result, it may be grounds for a medical malpractice lawsuit. However, Florida law does require any plaintiff alleging malpractice based on lack of informed consent to present expert testimony “to establish whether a reasonable medical practitioner in the community would make the pertinent disclosures under the same or similar circumstances.”
Doctor Not Liable for Failing to Consult on “Rare” Disorder
For example, a Florida appeals court recently tossed out a medical malpractice verdict in favor of a plaintiff who claimed he never gave informed consent. The patient suffered from diverticulitis and had developed a number of abscesses. A surgeon recommended surgery to remove the abscesses.
The patient also had a “rare neuromuscular disorder” that the surgeon was unfamiliar with. The surgeon did not consult with anyone regarding the disorder, nor did he make any special disclosures with respect to how this disorder might increase the risks of the surgery. An anesthesiologist assigned to review the patient’s case did, however, advise the patient he was at “high risk” for postoperative complications and might need to remain on a ventilator for some time.
In fact, the patient did suffer complications. His post-operation extubation failed, requiring him to remain on mechanical ventilation for an extended period. During this time, he “coded several times,” and “suffered permanent injuries and can no longer live independently.”
The patient sued the surgeon and several other parties for medical malpractice. A jury ruled in his favor. But on appeal, the Florida Second District Court of Appeal rejected the jury’s findings and entered a directed verdict in favor of the surgeon.
The plaintiff argued at trial that he never gave “informed consent” because the surgeon failed to properly advise him of the risks specific to undergoing surgery with his neuromuscular disorder. The plaintiff’s expert witness, who offered to establish the appropriate “standard of care” in such cases, did not actually have experience with this disorder. Instead, the expert testified that the defendant should have consulted with physicians who were experienced in treating this disorder before advising the plaintiff on how to proceed.
The Second District said that was insufficient to establish the defendant’s malpractice liability. The expert “did not and could not provide testimony as to what an accurate and adequate disclosure” to the plaintiff would have been. And since the plaintiff presented no additional expert testimony, the jury was left to speculate as to “some unidentified inadequacy” on the defendant’s part.
Need Help from a Florida Medical Malpractice Lawyer?
Medical malpractice cases often turn on the adequacy and credibility of expert testimony. This is why a malpractice case is not something a victim can handle alone. A qualified Clearwater medical malpractice attorney has the knowledge and experience to understand what a jury—and an appeals court—requires in the way of expert testimony and other evidence. If you have been injured to a medical provider’s negligence, contact the Law Office of Paul B. Genet, P.A. at 727-538-8865 right away.
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