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Professional Liability Insurance: A Compendium of State Law
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Bradley J. Goewert
.jpg) DRI member Bradley J. Goewert, a shareholder in the Wilmington, Delaware, office of Marshall, Dennehey, Warner, Coleman & Goggin teamed with a colleague recently to obtain a defense verdict in a medical negligence case. The defendant, a pulmonologist, was alleged to have breached the standard of care by failing to give the 46-year-old decedent informed consent prior to performing a bronchoscopy with transbronchial biopsy. More specifically, the breach was for failing to advise the patient that death was a risk of the procedure and failing to offer less risky alternatives to the transbronchial biopsy. It was undisputed that the physician did not advise the patient that death was a risk, nor was the patient offered less invasive alternatives to the transbronchial biopsy.
Prior to trial, the defense convinced the court that the plaintiffs must prove not only that the physician failed to inform the patient of risks and alternatives, and that the undisclosed risk caused the harm, but also that a reasonable patient in the position of the decedent would have declined to undergo the procedure had she or he been properly informed. Prior to this ruling, in the context of proximate cause for an informed consent case, Delaware required only that plaintiffs prove the procedure, surgery or treatment caused injury, and no consideration was given as to whether a proper informed consent would have impacted the patient's decision to undergo the procedure.
The jury found in favor of the physician on this newly recognized proximate cause standard for informed consent cases.
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