In a split decision, the Kentucky Supreme Court has allowed a medical malpractice lawsuit to proceed against the defendant, a surgeon, who was alleged to have chosen not to inform a patient, the plaintiff, of a risk associated with a device implantation procedure. The trial judge dismissed the case for lack of a medical expert to support the plaintiff’s case.
In a 4-3 decision, the Kentucky Supreme Court agreed with the intermediate appellate court that overturned the trial court’s directed verdict. The claim brought by Jacqulyn G. Harrington had been dismissed. In her suit, Harrington had alleged that Dr. Alex Argotte chose not to warn her that the device, called an inferior vena cava (IVC) filter, which was designed to prevent blood clots, could break apart and become lodged in her lungs.
The trial judge threw out the case shortly after Harrington’s lawyer made an opening statement at trial saying that they were not going to call an expert witness because only “common sense” was required to determine whether Harrington had been properly informed of the risks of the procedure.
Both the appellate court and the state Supreme Court agreed that Harrington’s lack of informed consent claim could survive without an expert witness, stating that Dr. Argotte himself testified during a pre-trial deposition that one risk associated with the IVC filter was that it could “fracture and migrate” to other parts of the body. Harrington’s primary argument at the trial level was that Dr. Argotte’s consent form listed “migration of filter” as a risk, but nothing about the risk of “fracturing” or “fragmentation” of the IVC filter.
“Therefore, the only issue remaining was the factual question whether the information he (Dr. Argotte) provided about those risks, ‘migration of filter’ would provide ‘a reasonable individual’ with ‘a general understanding’ of the risks that the filter could break into fragments which could then migrate to other bodily organs.” “That factual question is one that could readily be resolved by reasonable jurors without the assistance of expert testimony.”
In conclusion, the state Supreme Court stated that since Dr. Argotte acknowledged that fracturing of the IVC filter and subsequent migration was a known risk of the procedure, a jury should have been allowed to hear Harrington’s case. The court stated that there are two elements of Kentucky’s informed consent law.
In the dissent joined by three justices, they said that the informed consent also requires that the risk in question be a “substantial” risk. In other words, the dissent stated that a case like this required expert testimony to guide the jury of lay persons. An expert witness could independently determine whether a risk is substantial, the author of the dissent opinion stated.
Given the decision of the Kentucky Supreme Court affirming the appeals level court, the decision of trial judge was reversed and the case sent back to the trial court for further disposition.
Alex Argotte, M.D. v. Jacqulyn G. Harrington, 2015-SC-00464-DG, Supreme Court of Kentucky.
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