Sam Knef May 24, 2017, 5:33pm


JEFFERSON CITY — A woman's medical malpractice case that was decided in favor of defendants at trial in Buchanan County Circuit Court has been reversed by the Missouri Supreme Court. 

The high court on May 16 found that a jury instruction that was allowed by the trial court in plaintiff Josephine Wilson's suit against gastroenterologist Dr. Rohtashav Dhir and the practice of P.B. Patel, M.D., could have confused jurors. 

Wilson's attorney argued that circuit court Judge Weldon Judah abused discretion by refusing to give her proposed jury instruction withdrawing evidence of alleged informed consent in a medical procedure, the opinion states.

"Because informed consent was irrelevant to the case as pleaded and could only confuse the jury in its determination of the facts, the judgment is reversed and the case is remanded to the trial court," the opinion written by Justice Mary Russell says.

Wilson sought treatment from Dhir in 2009 for chronic pharyngitis, which is inflammation of the throat lining, and globus sensation, which is subjective feeling of something stuck in the throat causing difficulty swallowing but absent physical findings to suggest an abnormality, according to court documents.

The endoscopy that was performed revealed nothing abnormal, the ruling states, but Dhir also performed an esophageal dilation, which involves the use of a "rubbery bore dilator to stretch the esophagus."

The procedure was done because Dhir thought it would help with Wilson's difficulty in swallowing, the ruling states.

As Dhir withdrew the dilator, a kinked guidewire caused a tear in Wilson's esophageal lining, a known risk of the procedure, the ruling states.

Wilson subsequently underwent surgery to repair her esophagus, which she claimed caused constant pain.

In her lawsuit, she claimed the procedure was medically unnecessary and below the standard of care because the endoscopy showed that she had a normal esophagus.

At trial, evidence introduced included a form Wilson signed titled, “Consent to Treatment and Rendering of Other Medical Services.” 

The opinion notes that her case did not raise informed consent as a claim, and Dhir did not raise it as an affirmative defense in pre-trial proceedings. Yet direct examination and cross-examination included testimony about informed consent.

Prior to her case going to the jury, Wilson had sought a withdrawal instruction to remove “informed consent to the esophageal dilation” from the jury's consideration as it was a "false" issue, the ruling states.

Even during closing remarks, Dhir's attorney brought up Wilson's informed consent without Wilson's attorney objecting.

The jury asked to see the consent form and subsequently ruled in favor of defendants.

"This Court joins the chorus of other state supreme courts and holds that evidence of alleged informed consent is irrelevant and can only mislead the jury in a medical malpractice case based on negligent performance of care and treatment," Russell wrote. "If such evidence is introduced at trial, it should be subject to a withdrawal instruction. Because the trial court abused its discretion by refusing the withdrawal instruction, the judgment is reversed." 

Justice Zel Fischer concurred in part and dissented in part.

He agreed that informed consent is irrelevant in a medical negligence case "on the issue of first impression."

"I cannot conclude the circuit court abused its discretion in refusing the withdrawal instruction, considering how much discussion of the evidence had already been introduced by both parties prior to the request for a withdrawal instruction," he wrote in his dissent. "The circuit court is in the best position to determine whether the jury would be confused by a withdrawal instruction, and often, "the better practice is to tell the jury what the issues are rather than to tell them what [the] issues are not."

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