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Consent to Surgery Does Not Mean Consent to Malpractice


An appeals court recently overturned a previous verdict that ruled against a plaintiff who suffered life-threatening complications during a botched colonoscopy. In their decision, they found that the use of her signed informed consent form was not proper.

In the ruling handed down by the New Jersey Superior Court’s Appellate Division on Tuesday, July 25 to revive the case, the jury found that the form should never have been admitted as evidence.

“[T]his evidence had the capacity to mislead the jury, thereby making it capable of producing an unjust result,” the court said. “As the Pennsylvania Supreme Court noted, ‘the jury might reason that the patient's consent to the procedure implies consent to the resultant injury, and thereby lose sight of the central question pertaining to whether the defendant's actions conformed to the governing standard of care.’”

Norma S. Ehrlich filed her suit in July of 2013 after her colonoscopy in 2011 caused her to suffer from a perforation of the colon and a potentially fatal inflammation of the abdomen lining. This procedure was performed as part of a monitoring program she was a part of from 2003 to 2011 after suffering from complications from a procedure to remove a polyp in 2003.

During the trial in January of 2016, the judge improperly allowed submission of evidence of her consent to participate in the monitoring program. Ehrlich argued during her appeal that the inclusion of this evidence should be reversed seeing as her informed consent was not among her claims in the suit. She argued that her only issue was whether or not her doctor’s failure to perform a saline lift was negligent and increased her chances of suffering a perforation of her colon. The court ruled in her favor.

“We reject defendant's assertion the evidence was relevant to ‘counter plaintiff's testimony on direct examination that [defendant] gave plaintiff absolutely no information about her condition and treatment,’” the court said. “We also disagree with the judge's end-of-trial conclusion that plaintiff opened the door by exploring her entire history with defendant. Rather, the record shows that after twice attempting to exclude this evidence, plaintiff tried to minimize its damage by addressing it on direct examination.”

This case highlights a key message everyone needs to understand – just because you consent to receiving medical treatment doesn’t mean you consent to all possible outcomes of that treatment. Medical professionals are some of the most highly trained individuals working in any industry, and we place an incredible amount of trust in their ability to care for our health. Patients already have to deal with potentially life-threatening medical conditions, they shouldn’t have to carry the burden of someone else’s mistake too.

At Levinson Axelrod, P.A., our New Jersey medical malpractice lawyers have dedicated their careers to fighting for the rights of injured victims and their families. If you or someone you love was seriously harmed through medical malpractice, call us at (732) 440-3089 to explain your situation to one of our attorneys, or tell us about your case by filling in our online form today.

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