Motion in Limine

motion in limine

Note: This motion in limine is an effort to keep defendant doctor's attorney from confusing the jury into believing that just because the patient excuted an infomed consent that listed the risk, then plaintiff should not be able to bring a claim. Defense lawyers make the argument both explictly and implicitly and you have to shut both of them down. This is motion we file on this issue in a case we handled in Oregon. We also have a motion we filed in Maryland here (where we primarily practice). The law is specific to these states but the logic applied can be used in any case.

IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF DESCHUTES

NANCY BOWMAN,
- Plaintiff,

v.

ST. CHARLES HEALTH SYSTEM, INC
- Defendant.

CASE NO.: 24-C-12-071467-MM
(Professional Negligence)
Claim Not Subject to Mandatory Arbitration
(Prayer Amount $1,120,916.03)
Fee Statute: ORS 21.160(1)(D)

PLAINTIFF’S MOTION IN LIMINE TO BAR EVIDENCE THAT PLAINTIFF’S INJURY WAS A KNOWN RISK AND TO BAR EVIDENCE OF INFORMED CONSENT BY DEFENDANTINTRODUCTION

This case involves a claim of negligence/medical malpractice against Van Wyk Surgery Care, and its employee/agent Jana M. Van Wyk, M.D. Plaintiff claims that Dr. Van Wyk breached the applicable standard of medical care during a gall bladder operation on December 12, 2012, wherein Dr. Van Wyk clipped and cut the Plaintiff’s common hepatic duct. The Plaintiff required additional medical care and treatment to repair this injury. Plaintiff anticipates that the Defendant may attempt to introduce evidence that she warned the Plaintiff of the possible risks of the gall bladder operation, to include injury to her common hepatic duct, in an attempt to suggest or otherwise claim that the Plaintiff assumed the risk of this injury or that the Defendant was not otherwise negligent. Plaintiff now moves In Limine to exclude any and all evidence that she was informed of the risks associated with a gall bladder operation. Because neither party has raised informed consent as a claim or defense in this case, any evidence of informed consent, the consent forms, and discussions of the risks of the procedure are irrelevant, unduly prejudicial, and should be excluded. OEC 402-403.

EVIDENCE OF INFORMED CONSENT SHOULD BE EXCLUDED

When a defendant doctor in a medical malpractice case attempts to argue that her patient signed a consent form, she is not really arguing the consent was “informed,” she is actually suggesting to the jury that plaintiff “assumed the risk” of the injury and therefore should not be able to complain of the adverse outcome. However, assumption of risk is not a defense in this State. ORS 31.620. Oregon has abolished assumption of risk and has adopted comparative fault. Jensen v. Kacy's Markets, Inc., 91 Or.App. 285, 754 P.2d 624, 626 (Or App 1988). Because the defendant in this case has not raised comparative fault, what the Plaintiff knew or did not know regarding the risks of the gallbladder operation is irrelevant to the issues at bar – the only issue for the jury is whether or not the operation was performed negligently. OEC 402 & 403.

Plaintiff’s case is a straightforward negligence/medical malpractice case against Dr. Van Wyk. Plaintiff’s case does not involve a claim of battery or lack of informed consent. The primary question for the jury is whether the operation was negligently performed. A claim that an operation was negligently performed, and a claim that a defendant physician failed to disclose to a patient all relevant risks and information necessary for the patient to make an informed decision regarding the operation are two separate and distinct claims, addressed by two separate and distinct jury instructions. Compare UCJI 44.01 with UCJI 44.04. Only one issue is raised in this case - negligence. Informed consent has no place in this litigation.

Testimony regarding consent forms and discussions of the various risks of the surgery including injury to the biliary system should be excluded as irrelevant and hearsay. OEC 402 & 802. See Id. Evidence of executed consent forms and discussions with the defendant surgeon regarding potential risks of the operation are more prejudicial than probative, are likely to confuse the jury, and any attempt to convey this information to the jury is improper. OEC 403.

Jurors may conclude that if the Plaintiff was warned about the potential risk of injury to her biliary system that any resulting injury to the biliary system cannot be the product of negligence. This is simply not true under applicable Oregon law. Also see Wright v Kaye, 267 Va 510, 528-529, 593 SE 2d 307 (2004), (admission of evidence concerning plaintiff’s consent, in a simple negligence case, could only serve to confuse the jury because the jury could conclude, contrary to the law and the evidence, that consent to surgery was tantamount to consent to the injury which resulted from that surgery). Informing a patient of a risk of surgery does not insulate a doctor from liability. Wright, at 528-529 (while a patient may consent to risks the patient does not consent to negligence). The issue is whether the procedure was done properly or not. The defendant doctor cannot claim in a medical malpractice case that because she informed her patient of the risks of the surgery and because her patient executed a consent form acknowledging the risks of the particular surgery that she is not liable for the injury that follows. This would amount to an assumption of the risk defense which is not permitted under Oregon law.

The issue in the case is whether or not the injury to the Plaintiff’s common hepatic duct was caused by a breach of the standard of medical care. Plaintiff claims that the injury to her common hepatic duct was the product of a breach of the applicable standard of medical care by Dr. Van Wyk. The defense will obviously argue that Dr. Van Wyk did not negligently injure the Plaintiff’s common hepatic duct during the operation. What the Plaintiff knew or did not know about the alleged risk is irrelevant to this ultimate issue and any evidence of same is unduly prejudicial. OEC 402, 403.

Dr. Van Ambug may try to argue that the fact that she informed the plaintiff about the risk of injury to her biliary system is some evidence that such an injury could occur in the absence of negligence. A Defendant dentist made essentially the same argument in Franco. The Court of Appeals summarily dismissed defendant’s appeal and affirmed the trial Court’s decision to exclude the evidence of informed consent. Franco v. Willamette Dental Management Corp., 220 Or App 683, 189 P3d 39 (2008) affirmed without opinion.

In Franco, defendant dentist, Dr. Bergens, argued that his discussion with plaintiff informing him that there was a risk of damage to the lingual nerve in the absence of negligence was relevant to whether Dr. Bergens met the standard of care, i.e., whether Dr. Bergen was negligent when he damaged plaintiff’s lingual nerve. “This information [that lingual nerve damage may occur in the absence of negligence] helps establish the background of plaintiff’s treatment with Dr. Bergens and is information the jury should be aware of to help them in determining whether Dr. Bergens actions fell below the standard of care.” Blue Br. at 38. Dr. Bergens argued: “If the evidence had been permitted, the jury would have had a complete, rather than a partial, picture of Dr. Bergens’ care and treatment of plaintiff, including his warnings to plaintiff about the consequences that can sometimes result. * * * If the jury had had this information, it could have affected the jury’s decision as to whether or not Dr. Bergens met the applicable standard of care.” Blue Br. at 39-40. See also Reply Br. at 11, reiterating, “Defendant seeks admission of the pre-surgery discussions only because they are relevant to the applicable standard of care.” By asserting that the informed consent discussions were relevant to the standard of care, Dr. Bergens was claiming that the information he conveyed – that the lingual nerve could be damaged in the absence of negligence – was proof of a non-negligent manner of harm. The court concluded that this type of legal argument was impermissible. Accordingly, Dr. Van Wyk cannot argue or suggest that the injury to the Plaintiff’s common hepatic duct was not the product of negligence because she informed the Plaintiff prior to the operation that an injury could occur and/or because the Plaintiff signed a consent form acknowledging the various risks of a gallbladder operation. The Court of Appeal’s AWOP in Franco resolved this issue against defendants.

Evidence of informed consent is not relevant to this negligence claim. In a case of first impression, the Court of Appeals in Warren v. Imperia, 252 Or App 272, 287 P3d 1128 (2012), recently held that evidence of informed consent must be excluded as irrelevant and unduly prejudicial when the Plaintiff has not made a claim for lack of informed consent . Warren involved a medical malpractice claim against an ophthalmologist. The Plaintiff claimed vision problems following a negligently performed CK procedure (cornea shaping laser surgery). Plaintiff initially brought claims of lack of informed consent and negligence against the ophthalmologist but dismissed the informed consent claims before trial. Plaintiff then filed a motion in limine to exclude any evidence pertaining to discussions with the defendant regarding the risks of the procedure and to exclude any inform consent forms that she executed before the operation. The trial court granted the Plaintiff’s motion excluding evidence pertaining to informed consent and the jury rendered a verdict in favor of the Plaintiff. The Defendant appealed claiming the trial court erred in excluding informed consent evidence. The Court of Appeals affirmed the trial judge’s exclusion of the evidence and reasoned that in a medical malpractice case:

Evidence of information conveyed to the plaintiff concerning the nature of the procedure, its inherent risks, and available alternatives had no bearing on what the standard of care was or whether defendant deviated from that standard. Evidence of plaintiff’s awareness of that information would neither have assisted plaintiff in proving negligence nor have assisted defendant in showing that he was not negligent. Put simply, what plaintiff was told bears no relationship to what defendant should have done….Rather, the only issue was whether the treatment furnished was objectively reasonable.

Id. at 280. (Emphasis in original).

As to prejudice, the court concluded: “Here, the potential prejudice of the evidence is readily apparent. Evidence that Plaintiff was told about the risk of surgery raised the possibility that the jury might consider whether the Plaintiff assumed the risks of the surgery or consented to the defendant’s negligence. In other words, the evidence had a significant potential to confuse the jury or lead it to decide the case on an improper basis.” Id. at 281.

Judge Sercombe also noted that the “…trial court did not preclude
Evidence related to the risks of surgery, but merely excluded evidence of communications with plaintiff about those risks.” Id. at 282. The Plaintiff herein is requesting the same exclusion of irrelevant and unfairly prejudicial evidence as the Plaintiff in Warren requested.

Although not controlling, Plaintiff notes that similar Pretrial motions excluding evidence of informed consent were granted in the following cases which were decided prior to the Warren decision:

  1. Swift v. Medical Dental Surgical Specialists, PC, et. al., Mult County No. 0302-02207 order signed by Judge Clifford Freeman July 19, 2004.
  2. Burgess v. Teamsters Medical Clinic Mult County No. 9804-02547, November 9, 1999 pretrial motion evidence of informed consent should be excluded was granted by Judge Robert P. Jones.
  3. Gilbertson v. Xiao, DDS, Mult. County No. 020808497, Judge David Gernant, October 13, 2003.
  4. Franco v. Willamette Dental, Mult. County No. 0406-05594, Judge Jerry Hodson, June 12, 2006.

In conclusion, whether clipping and cutting a common hepatic duct during a gall bladder operation is one of the known complications and risks of the procedure that can occur in the absence of negligence will most certainly be addressed by the parties’ respective experts. This evidence falls within the exclusive purview of expert testimony. Plaintiff requests that the Defendant in this case be precluded from introducing evidence of conversations between herself and the Plaintiff involving risks associated with the operation and from mentioning consent forms. Otherwise, this tactic would amount to an impermissible manner in which to back door and otherwise bolster anticipated expert testimony.

Quite simply put, whether the Plaintiff was actually informed of the risk of a biliary injury before the gall bladder operation took place does not make the injury itself any more or less likely the product of negligence. It has zero probative value.

WHEREFORE: For the reasons advanced above, the Plaintiff respectfully requests that this Honorable Court preclude the Defendant from offering any evidence that the Plaintiff was informed of the nature and risks of the December 12, 2012, gall bladder operation.

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