In NJ Case of First Impression, Appellate Division Reverses and Remands No-cause Verdict, Ruling Informed Consent Evidence Irrelevant and Prejudicial When Issue is Negligent Treatment

08.14.17

The case of Norma S. Ehrlich v. Jeffrey J. Sorokin, M.D, N.J. Super. App. Div. (Hoffman, J.A.D. July 25, 2017) involved an appeal from a Law Division Order dismissing the plaintiff's complaint against defendant, Dr. Jeffrey Sorokin, based upon a no-cause jury verdict in a medical malpractice action brought against him. The underlying suit alleged negligence and centered on complications allegedly suffered by the plaintiff following a colonoscopy and polypectomy procedure performed in 2011. The plaintiff did not assert a claim for lack of informed consent.

Before testimony, the plaintiff moved in limine to exclude evidence regarding her consent to the colonoscopy. The Trial Judge denied the motion. As a result of this ruling, the plaintiff's counsel questioned the plaintiff regarding the various consent forms she signed before each procedure. On cross-examination, the defense counsel asked the plaintiff about the language from one of her consent forms, which stated the procedure could result in injury and hospitalization. Over objection, and at the end of the testimony, the Trial Judge allowed the jury to review the plaintiff's consent documents as part of its deliberations, which ultimately resulted in a no-cause verdict for the defense.

On appeal, the Court addressed the plaintiff's contention that the Trial Judge erred by allowing the defense to present irrelevant and misleading evidence of the plaintiff's informed consent to the procedures, when she did not assert a claim for lack of informed consent. In reversing and remanding the no-cause verdict, the Court recognized that the duty of informed consent represents a different independent duty unrelated to the standard of care for performing medical treatment, namely providing pertinent medical information concerning the risks of the procedure, the alternatives, or the potential results if the procedure or treatment was not undertaken. (Howard v.UMDNJ, 172 N.J. 545, 548, 2002) The Court considered various out-of-state cases and was convinced that the admission of the informed consent evidence in this case, where the plaintiff asserted only a claim of negligent treatment, was irrelevant to the issue presented at trial and constituted reversible error.

Comment: While causes of action for negligent treatment and lack of informed consent fall under the umbrella of medical malpractice, these causes of action require different elements of proof and the law distinguishes the two claims. In this case of first impression in New Jersey, the Appellate Division ruled that the introduction of language in a patient's consent form, in the absence of a claim of lack of informed consent had the capacity to mislead the jury, thereby making it capable of producing an unjust result. This decision would not foreclose the defense from offering testimony regarding risks and/or complications of a particular procedure through other means such as the use of expert witnesses.

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