By: J. Clancey Bounds, Esq.

Medical malpractice litigation in Florida encompasses many different types of cases. Some cases are for delays in diagnosis while others are for misdiagnosis, and still others are for technical errors in procedures, interpretation or communication. The last area, communication, has many components, such as communication of results, communication of how and when to take medications, and communication of recommendations for further care. While all communication is important, a critical element of healthcare provider / patient communication is consent.

The issue of consent was actually the basis for one of the earliest known medical malpractice cases. The case, Slater vs. Baker and Stapleton, Eng. Rep. (1767), was decided in an English court in 1767ⁱ. It involved an unfortunate gentleman, Richard Slater (or Slatter), who had suffered from a broken leg (both tibia and fibula) after falling from a horse. Mr. Slater hired two physicians, Thomas Baker and Isaac Stapleton, to assist with changing the bandage which was causing him some discomfortⁱⁱ. The physicians were consulted because the fracture was potentially only partially healed. The doctors removed the bandage and replaced it with a new type of brace. While the brace was on the leg that was partially healed, the fracture was "disunited." It was alleged that the placement of the new type of brace caused the re-break, and that the use of the new brace constituted experimentation, for which there had been no consent. In ruling on the case for technical reasons, the court ultimately held that to "disunite" a callus without consent was a violation of the "known rule and usage of surgeons," or, in other words, the standard of care. The award was roughly £500, the equivalent of around $100,000 today.

Since then, the laws have developed and evolved but the general idea, that the patient should be able to choose to care for herself after being informed, has remained the same. Florida's medical consent law is codified in §766.103, Florida Statutesⁱⁱⁱ. The law governs all medical care, except in certain emergency situations, that is provided by physicians licensed under chapter 458, osteopathic physicians licensed under chapter 459, chiropractic physicians licensed under chapter 460, podiatric physicians licensed under chapter 461, dentists licensed under chapter 466, advanced practice registered nurses licensed under §464.012, or physician assistants licensed under §458.347 or §459.022. Interestingly the law does not name other types of health care providers such as nurses, physical therapists, occupational therapists, and other professions which fall within the definition of "health care providers."

§766.103(3)(a), Florida Statutes, acts to eliminate causes of action for treating, examining, or operating on a patient without his or her informed consent, when: the provider obtains the consent of the patient or the patient's appropriate representative in a way that was "in accordance with an accepted standard of medical practice among members of the medical profession with similar training and experience in the same or similar medical community" as that of the provider, AND when a reasonable patient, "from the information provided" by the provider, "would have a general understanding of the procedure, medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed treatment or procedure, which are recognized" among other providers who perform similar treatments or procedures. When both these conditions are not met, §766.103(3)(b) contains an exception allowing for no consent when "[t]he patient would reasonably, under all the surrounding circumstances, have undergone such treatment or procedure had he or she been advised" by the provider as described in subsection (a). However, by incorporating subsection (a), this section also includes the requirement for expert testimony.

§766.103(4)(a) provides for a rebuttable presumption, as follows:

• A consent which is evidenced in writing and meets the requirements of subsection (3) shall, if validly signed by the patient or another authorized person, raise a rebuttable presumption of a valid consent.

Suffice it to say, the informed consent cases interpreting §766.103 are not straightforward. This is reflected in two cases principally. The first and the most recent case that interprets §766.103 is Yentes v. Papadopoulos, 352 So. 3d 472 (Fla. 2d DCA 2022). The case presents a thoughtful review of the statute in the context of a motion for judgment on the pleadings brought by defense counsel. The Yentes court held that that §766.103 and its subsections are not an "exhaustive list" of the information that a physician is required to relay to her patient in order for the consent to be valid, but rather, are a list of what the patient must understand based on the information provided by the physician. Id. at 475. Yentes reaffirmed the notion, which other courts have held consistently, that expert testimony is required to establish what information should have been conveyed to any given patient under the specific circumstances. See, e.g., Thomas v. Berrios, 348 So. 2d 905, 907 (Fla. 2d DCA 1977). Thus, any practitioner pleading a case for lack of informed consent should be aware that experts are required to establish informed consent cases and should not fall for the argument that §766.103 sets out all health care providers must do for adequate informed consent.

Another important case in this area is Santa Lucia v. LeVine, 198 So. 3d 803 (Fla. 2d DCA 2016). In Santa Lucia, the patient alleging that a surgeon defendant did not obtain informed consent when the surgeon failed to provide the patient with information that patients with his neuromuscular disease were at an increased risk of pulmonary complications, and further alleged that the defendant did not properly consult a specialist in the field of neuromuscular dysfunction to advise on the medical issues. The plaintiff prevailed at trial and the defendant appealed the trial court’s failure to grant a directed verdict.

The Second District analyzed the matter and determined that the plaintiff had not established all of the required elements of the cause of action, through admissible expert testimony, to sustain the verdict. In so holding, the Court noted several issues with the proof offered by the plaintiff. The Court held that while the plaintiff had proved, through expert testimony, sufficient evidence of the standard for care, he failed to prove either breach or causation on the informed consent count and had further failed to present causation testimony on the issue of the failure to consult an expert in the field. In so deciding, the court in Santa Lucia held that all four elements, standard of care, breach, causation and damages must be proven with admissible expert evidence to prevail in informed consent claims.

Looking practically at informed consent cases

Many lawyers plead lack of informed consent in nearly every case. I suppose the reasoning is to plead it and see how the facts develop, often despite the availability of clear consent forms in the chart with standard consent language. While this is understandable, there are cases when the juice is not worth the squeeze, in pleading or proving informed consent. Such cases include matters with clear medical liability where adding a consent issue may add only confusion of the issues, thereby taking away from the stronger part of the case. In such cases, pleading informed consent will actually harm your clients' cases more than it will ever help.

As many malpractice practitioners know, defense lawyers love to wave about the consent form, especially when the form lists, as a risk of the procedure, the very injury being complained of. They will seek to do this even when there is no lack of informed consent pled. They do so because they want the jury to infer that informed consent means a waiver of liability by the patient, because the patient knew the particular complication could happen and underwent the procedure anyway. They also use the consent form to conflate the so-called "recognized complication" defense with the notion that "if it's listed as an event on the consent, it isn't negligence that it happened." Finally, they use consent forms to imply that the plaintiff assumed the risk.

The best way to avoid these defenses is to NOT plead an informed consent claim in your complaint. Pleading a count for informed consent guarantees that the consent form, and any discussions between the patient and provider of potential risks and complications, will be relevant and thus, most likely admissible in evidence. Not pleading a count for lack of informed consent enables plaintiff's counsel to argue to the court that the consent form and discussion are not relevant to any issue in the case, and that under §90.403, any probative value the evidence might have been outweighed by unfair prejudice and confusion of the issues for the jury.

Case law in Florida and other states supports these arguments. In 1977, the Florida Supreme Court held in Blackburn v. Dorta, 3488 So. 2d 287, 293 (Fla. 1977) that "the affirmative defense of implied assumption of risk is merged into the defense of contributory negligence and the principles of comparative negligence... shall apply in all cases where such defense is asserted." The Court held that there was no "sound rationale for retaining... as a separate affirmative defense to negligent conduct," the concept of implied-qualified assumption of risk when using that term "has caused persistent confusion in the law of torts," thus effectively eliminating the term "assumption of the risk" from the vernacular of the courts. With this, any argument that the patient "assumed the risk" is contrary to current law, and a "consent" document should not be used to imply assumption of the risk. In a case with no informed consent or consent issues, the only possible use for such a document is an attempt to imply assumption of the risk.

The Fourth District Court of Appeals in Wax v. Tenet Healthcare System Hospitals, Inc. 955 So. 2d 1, 10, n. 2 (Fla. 4th DCA 2006) contributed to the evolution of law on consents and their meaning when it stated:

• We interpret [the plaintiff's] acceptance of risks to cover only the known risks from the use of anesthesia within the applicable standard of care. We do not recognize his acceptance as a relinquishment of anyone’s liability for a claim for negligence in the impending administration of anesthesia to him.

An Ohio court specifically addressed the issue of consent forms and their relationship to negligence in Waller v. Aggarwal, 688 N.E. 2d 274, 275 (Ohio Ct. App. 1996), holding that informed consent was not an affirmative defense of negligence. Similarly, a Pennsylvania courts have held that if the medical treatment at issue was negligently performed, the fact that the risks of treatment were explained and accepted is of no consequence. See, e.g., Montgomery v. Bazaz-Sehgal, 798 A.2D 742, 749 (Pa. 2002) (while an informed consent action involves a claim that certain medical treatment was not consented to, a medical negligence action involves "a claim of consented-to, but negligently performed, medical treatment"). See also Wright v. Kaye, 593 S.E.2d 307 (Va. 2004). In the case of Handschuh v. Albert Development, 574 A.2d 693, 695 (Pa. Super. Ct. 1990), the Pennsylvania Superior Court observed:

• Every time that an individual undergoes surgery he should be aware that there is a risk of lapsing into a coma or dying. However, the law has never taken cognizance of these facts and relied upon them to excuse an individual who negligently causes a motor vehicle collision from liability for the resulting injuries, or likewise excusing a negligent surgeon or anesthesiologist or the negligent airline from resulting injury or death.

Given that informed consent is a theory of liability that requires complex proof, requires all elements of a tort action to be proven via expert testimony, and can lead to serious confusion and the admissibility of documents which could very seriously affect your liability case, practitioners should very carefully weigh whether or not an informed consent count is worth the time and trouble. In the end analysis, the juice usually is not worth the squeeze.

J. Clancey Bounds is the Founder and a practicing attorney for the Bounds Law Group, located in Maitland Florida. He is admitted to the bar and practices in Florida, Arizona, California, District of Columbia, and Texas.

ⁱ Slater v. Baker and Stapleton, 2 Wilson 359, 95 Eng Rep 860 (C.B. 1767).
ⁱⁱ Miller, Robert D., Slater v. Baker and Stapleton (C.B. 1767): Unpublished Monographs by Robert D. Miller (Madison WI: By Author 2019) Monograph #2, at 2, https://minds.wisconsin.edu/handle/1793/80595.
ⁱⁱⁱ Fla. Stat. §766.103.