Ehrlich v. Sorokin, 451 N35 119 (App. Division 2017), Decided July 20, 2017

In this case plaintiff underwent a colonoscopy and polypectomy performed by the defendant doctor. Plaintiff alleged that the defendant negligently performed the procedure by failing to create a cushion underneath her polyp. A claim for failure to obtain informed consent was not asserted.

Prior to trial plaintiff filed a motion to exclude as evidence the consent forms she has signed for colonoscopy procedures from 2003 to 2011. The Trial Court denied the motion, finding that the forms and information provided to the patient was part of the standard of care, and, was, therefore relevant.

At trial, during cross examination, the plaintiff was asked about the signed informed consent forms in which it was stated that the procedure “could result in injury and hospitalization”. At the end of the case, the Trial Court allowed the jury to review the plaintiff’s informed consent documents during its deliberations.

Plaintiff appealed, and the Appellate Division held that there are different standards of proof for claims of a) medical malpractice and b) lack of informed. A plaintiff’s informed consent cannot be considered unless the plaintiff opens the door, as informed consent is generally unrelated to the standard of care for performing a medical procedure. Both are independent duties:
1. The duty to diagnose and treat the patient in accordance with the standard of care and;
2. The duty to disclose all medically reasonable treatment alternatives, so that the patient can make an informed decision.

The Court relied upon, Gonzalez v. Silver, 407 N.J. Super. 576 (App. Div. 2009), and out of State cases, to hold that evidence of informed consent, such as consent forms, is both irrelevant and unduly prejudicial in medical malpractice cases when there is no claim asserted for failure to obtain the patient’s informed consent.

As such, since the issue of “informed consent” is unrelated to the standard of case, the Appellate Court held that the plaintiff’s consent form should not have been admitted into evidence, and, the case was remanded for a New Trial.