Must a physician obtain informed consent to discharge? Is the long-form proximate cause instruction sufficient in "loss of chance" theory cases?
Case SummaryA 42-year-old woman died following an alleged failure of emergency department (ED) providers to timely diagnose and treat her for sepsis or toxic shock syndrome due to a retained tampon. Defendants' theory was that she died of an unrelated condition, acute viral myocarditis. At trial, the evidence established that the patient declined a recommended admission to the hospital, but also that the ED physician failed to advise her about suspected sepsis or any life-threatening condition at discharge. Plaintiff tendered the pattern informed consent instruction (IPI Civil (2011) No. 105.07.01), but the trial court refused it. Plaintiff also tendered a non-pattern jury instruction on the loss of chance doctrine, which the trial court similarly denied. The jury returned a verdict for defendants and Plaintiff appealed in part from the trial court's denial of her tendered instructions.
On appeal, defendants argued that pattern informed consent instruction applies only to obtaining informed consent to perform a test or procedure, as opposed claims involving a physician's failure to advise about the risks of a medical condition at discharge. In overruling the trial court's decision...
