Expert Testimony Not Always Needed to Support an Informed Consent Claim: Sharon Parker v. Joseph Ortiz, M.D. (A-5868-11T1)

This medical malpractice action arises from an iridotomy performed on the plaintiff’s left eye, which resulted in post-operative complications. The Trial Court granted defendant’s motion for partial summary judgment on plaintiff’s informed consent claim, asserting plaintiff’s failure to provide expert medical evidence that the medical community knew of the risk of her specific injury. After hearing conflicting testimony regarding plaintiff’s negligence claim, the jury returned a verdict in favor of the defendants. Plaintiff moved for a new trial claiming the dismissal of her informed consent claim was in error, and the jury verdict was against the weight of the evidence. The motion for a new trial was denied.

On appeal the informed consent claim was framed as whether a defendant-doctor should have been aware of the risk because it was well known in the medical community at the time of surgery. Here, plaintiff argued that such proof was established, not by expert testimony, but rather by the defendant-doctor himself. Citing an exception to the general rule requiring expert testimony, the Court held that where the defendant concedes the risk was known, but claims the patient was informed of the risk, no expert evidence is needed. Deposition testimony of the defendant revealed he admitted past patients suffered from similar post-operative complaints as plaintiff. The Appellate Division reversed the dismissal of plaintiff’s informed consent claim based on this testimony. The jury verdict for the remaining claims was affirmed, because the jury properly reached its conclusion by crediting the defendants testimony over the plaintiff.

Related Articles: