United States District Court, W.D. Tennessee, Western Division
CHARLES MARK McDANIEL, and his wife, MELODY McDANIEL, Plaintiffs,
UT MEDICAL GROUP, INC., Defendant.
ORDER GRANTING PLAINTIFFS' MOTION TO EXCLUDE
EVIDENCE OF INFORMED CONSENT
PHAM, UNITED STATES MAGISTRATE JUDGE
the court is plaintiffs Charles and Melody McDaniels'
motion to exclude any evidence relating to informed consent,
filed on January 22, 2018. (ECF No. 52.) Defendant UT Medical
Group, Inc. (“UTMG”) filed a response on January
29, 2018. (ECF No. 72.) On February 5, 2018, the court held a
pretrial conference, at which this and other motions were
argued. (ECF No. 82.) For the following reasons, the
McDaniels' motion is GRANTED.
McDaniels move for exclusion of informed consent evidence on
the grounds that it is irrelevant to proving or disproving
whether Dr. Behrman deviated from the pertinent standard of
care when he performed the post-operative care at issue in
this case. They also argue that the evidence is overly
prejudicial and may confuse the jury.
counters that this evidence is crucial to its defense that
the infection Charles McDaniel developed was a known
postoperative risk of the surgery Dr. Behrman performed. It
further points out that the parties already agreed that all
of the medical records in the case are admissible, and those
records include informed consent forms. Finally, it argues
the jury may be confused if it has access to only certain
consent forms but not others. Instead of excluding this
evidence, UTMG asks the court to instruct the jury that they
may not construe the evidence of informed consent to be
consent to negligence.
is relevant if it has any tendency to make a fact more or
less probable than it would be without the evidence; and the
fact is of consequence in determining the action.”
Fed.R.Evid. 401. Courts are to exclude even relevant evidence
if “its probative value is substantially outweighed by
a danger of . . . unfair prejudice, confusing the issues,
[or] misleading the jury . . .” Fed.R.Evid. 403. The
parties have not cited a reported federal case analyzing the
relevancy of evidence of informed consent in a case where a
plaintiff does not allege failure to obtain informed consent.
Tennessee courts have also provided little guidance on this
matter. See Bearden v. Lanford, No.
M2012-02073-COA-R3CV, 2013 WL 6908938, at *28 (Tenn. Ct. App.
Dec. 30, 2013) (affirming, without explanation, the trial
court's admission of evidence of informed consent in a
case where the plaintiff did not allege a claim based on
informed consent). However, other state courts that have
addressed this issue have overwhelmingly favored excluding
evidence of informed consent as irrelevant and prejudicial.
See Wilson v. P.B. Patel, M.D., P.C., 517 S.W.3d
520, 526 (Mo. 2017); Brady v. Urbas, 111 A.3d 1155,
1162 (Pa. 2015); Fiorucci v. Chinn, 764 S.E.2d 85,
87 (Va. 2014); Baird v. Owczarek, 93 A.3d 1222,
1232-33 (Del. 2014); Hayes v. Camel, 927 A.2d 880,
889-90 (Conn. 2007); Ehrlich v. Sorokin, 165 A.3d
812, 819-20 ( N.J.Super.Ct.App.Div. 2017); Hillyer v.
Midwest Gastrointestinal Assocs., P.C., 883 N.W.2d 404,
410-13 (Neb. Ct. App. 2016); Matranga v. Par. Anesthesia
of Jefferson, LLC, 14-448 (La.App. 5 Cir. 5/14/15), 170
So.3d 1077, 1093; Warren v. Imperia, 287 P.3d 1128,
1132-33 (Or. Ct. App. 2012); Schwartz v. Johnson, 49
A.3d 359, 374-75 (Md. Ct. Spec. App. 2012); Waller v.
Aggarwal, 688 N.E.2d 274, 275 (Ohio Ct. App. 1996).
But see Hodes v. Ireland, No. 2006-SC-000890-DG,
2009 WL 1830758, at *1 (Ky. June 25, 2009) (affirming without
explanation that evidence of informed consent was relevant).
McDaniels have not alleged that UTMG failed to obtain
informed consent. Rather, they allege that Dr. Behrman
breached the standard of care. In this situation,
[k]nowledge by the trier of fact of informed consent to risk,
where lack of conformed [sic] consent is not an issue, does
not help the plaintiff prove negligence. Nor does it help the
defendant show he was not negligent. In such a case, the
admission of evidence concerning a plaintiff's consent
could only serve to confuse the jury because the jury could
conclude, contrary to the law and the evidence, that consent
to the surgery was tantamount to consent to the injury which
resulted from that surgery. In effect, the jury could
conclude that consent amounted to a waiver, which is plainly
Wright v. Kaye, 593 S.E.2d 307, 317 (Va.
2004)(citing Waller, 688 N.E.2d at 275-76); see
also Brady, 111 A.3d at 1163-64 (“The jury, for
its part, ultimately focused its attention on what [the
plaintiff] ‘had agreed to' and, shortly thereafter,
returned a verdict finding that [the doctor] was not
negligent. There is a substantial possibility, then, that the
jury's verdict rested on an improper
consideration.”). Here, the court finds that any
evidence that Charles McDaniel knew about the risks is
irrelevant and prejudicial.
may be circumstances in which evidence of informed consent
could be admissible. See Brady, 111 A.3d at 1161
(noting that evidence of informed consent “may be
relevant to the question of negligence if . . . the standard
of care requires that the doctor discuss certain risks with
the patient”); Holley v. Pambianco, 613 S.E.2d
425, 428 (Va. 2005)(affirming the trial court's ruling
that the defendant may present evidence of informed consent
to support the argument that the plaintiff failed to mitigate
damages). However, those circumstances are not present in
this case. Therefore, the court will exclude all evidence of
informed consent, including all consent forms in the medical
order does not prevent UTMG from presenting evidence of the
surgical and post-operative risks. See Hayes, 927
A.2d at 890 (“[E]vidence of the risks of a surgical
procedure is relevant in the determination of whether the
standard of care was breached . . .”). UTMG may present
this evidence “in the form of general testimony by the
defendant or nonparty expert witnesses.”
Hillyer, 883 N.W.2d at 416 (citing Hayes,
927 A.2d at 890.)
these reasons, the McDaniels' motion to exclude evidence