SCOKY Clarifies Appropriate Jury Instruction for Informed Consent Claim

In an opinion (see it here) rendered on August 20, 2015, the Kentucky Supreme Court reversed a jury verdict in favor of a surgeon on a claim for failure to obtain informed consent.  In Sargent v. Shaffer, 2013-SC-000111, the plaintiff underwent a spinal surgery that ultimately resulted in incontinence and permanent paralysis from the waist down.  The plaintiff alleged that the surgeon had failed to adequately inform her of these risks, as she had only been made aware of the potential for infection, bleeding, and nerve damage.  The trial court instructed the jury to find for the plaintiff if the surgeon violated the general duty to disclose the risks of the procedure in accordance with accepted medical standards.  On appeal, the plaintiff argued that this general instruction failed to adequately comply with Kentucky’s informed consent statute, KRS 304.40-320.

In an opinion by Justice Venters, a majority of the Court held that the instruction was erroneous because the legislature had enacted KRS 304.40-320 to expound upon the general duty to obtain a patient’s informed consent in accordance with accepted medical standards.  The Court noted that Subsection (2) imposes an additional requirement that the healthcare provider’s disclosure be sufficient for a reasonable individual to have a “general understanding” of the procedure, its risks, and available alternatives.  In other words, to obtain a patient’s informed consent, a healthcare provider must satisfy both the general duty found in Subsection (1) and the additional duty found in Subsection (2).  Because the jury instruction failed to incorporate the “general understanding” component, the Supreme Court reversed the verdict and remanded the case for a new trial.

This decision is likely to result in reversal and remand of  another recent opinion rendered by the Kentucky Court of Appeals that we blogged on (see it here) in March 2015, Horsley v. Smith, 2011-CA-002202, which held that KRS 304.40-320 does not define the duty to obtain informed consent, but rather constitutes a “safe harbor” that would absolve a healthcare provider from liability if either Subsection (1) or Subsection (2) is satisfied.

Assuming the Sargent opinion becomes final, trial courts in informed consent cases must now base their jury instructions on the language found in KRS 304.40-320 and require juries to consider not only the general duty of care from the perspective of the healthcare provider but also the sufficiency of the information disclosed from the perspective of a reasonable patient.

Sargent v. Shaffer is not yet final but was designated for publication in the South Western Reporter.

David Kramer is a Partner in the law firm of Dressman Benzinger LaVelle, with offices in Cincinnati, Ohio, Crestview Hills, Kentucky, and Louisville, Kentucky.