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Wilson v. Patel

Supreme Court of Missouri, En Banc

May 16, 2017

P.B. PATEL, M.D., P.C., and ROHTASHAV DHIR, M.D., Respondents.

         APPEAL FROM THE CIRCUIT COURT OF BUCHANAN COUNTY The Honorable Weldon C. Judah, Judge

          Mary R. Russell, Judge

         Josephine Wilson brought a medical malpractice cause of action against defendants Rohtashav Dhir, M.D., and his practice group, P.B. Patel, M.D., P.C. The jury returned a verdict in favor of the defendants, and Wilson appeals. She claims the trial court abused its discretion by refusing to give her proposed jury instruction withdrawing evidence of her alleged informed consent to the medical procedure. Because informed consent was irrelevant to the case as pleaded and could only confuse the jury in its determination of the facts, the judgment is reversed and the case is remanded to the trial court.

         Facts and Procedural Background

         Josephine Wilson sought treatment beginning in 2000 for acid reflux and trouble swallowing. In 2004 and 2005, she underwent balloon dilation of her esophagus, which provided some long-term relief for her acid reflux. An ear, nose, and throat specialist diagnosed Wilson in the fall of 2009 with chronic pharyngitis (inflammation of the throat lining) and globus sensation (subjective feeling of something stuck in the throat causing difficulty swallowing but absent physical findings to suggest an abnormality). The specialist referred Wilson to Dr. Rohtashav Dhir, a gastroenterologist, for further consultation and evaluation.

         Dr. Dhir first examined Wilson on December 2, 2009, and prescribed a medication for her acid reflux. He also scheduled an esophagogastroduodenoscopy ("endoscopy") for December 8 at an outpatient clinic. Dr. Dhir's notes from the December 2 appointment state Wilson understood the procedure and conclude "[s]he might need dilation of the esophagus depending on the findings."

         On December 8, 2009, Dr. Dhir performed the endoscopy on Wilson to examine her esophagus and stomach down to her duodenum (the first section of the small intestine). He found gastritis (inflammation or irritation of the stomach lining) and a single polyp near the top of Wilson's esophagus, which he removed with forceps. Dr. Dhir's operative report stated that her "GE junction [where the stomach meets the esophagus] and the esophagus appear to be normal." According to Dr. Dhir's testimony, the procedure revealed "nothing in the duodenum that would stimulate any further action on my part or important to be noted."

         Although the endoscopy revealed nothing abnormal, Dr. Dhir decided to perform an esophageal dilation: a procedure using a large, rubbery bore dilator to stretch the esophagus. He felt for resistance as he manually pushed the dilator down Wilson's esophagus, and later testified the "dilation went smooth" and he felt nothing other than the expected mild resistance. As he withdrew the dilator, Dr. Dhir noticed the guidewire was kinked. He performed another endoscopy and observed a tear in Wilson's esophageal lining. Dr. Dhir concluded the tear had been caused by the dilation, as it is one of the known risks of the procedure.

         A cardiothoracic surgeon repaired the esophageal tear, which necessitated opening Wilson's chest wall, spreading her ribs, and collapsing one of her lungs to reach her esophagus. The surgeon noted no abnormalities with her esophagus other than the tear. Wilson testified she has experienced constant pain in her ribs, nerves, and muscles since the surgery.

         Wilson sued Dr. Dhir and his practice group, P.B. Patel, M.D., P.C., for medical malpractice. She argued the esophageal dilation was medically unnecessary and below the standard of care because the endoscopy revealed she had a normal esophagus. Dr. Dhir defended his decision to perform the dilation despite the normal endoscopy findings because he thought it would help her dysphagia (difficulty swallowing). He also explained that abnormal esophageal tissues sometimes occur in the outer layers of the esophagus, which are not visible with endoscopy.

         Prior to the endoscopy, Wilson signed a form titled "Consent to Treatment and Rendering of Other Medical Services." The form confirms the patient's doctor "has discussed the nature and purpose of the surgery/medical procedure and the risks and benefits associated with it." Wilson's theory for the case alleged Dr. Dhir was negligent in performing a medically unnecessary empiric dilation (dilation without a finding of stricture or abnormality) because the endoscopy showed normal findings. She did not present a claim for lack of informed consent, and Dr. Dhir did not raise informed consent as an affirmative defense. Nevertheless, Dr. Dhir's counsel stated in opening argument that Wilson had signed an "informed consent" that read: "The risks and benefits have been explained to me. I'm aware that my doctor may choose to do other procedures if necessary." Wilson's counsel did not object to the mention of "informed consent."

         Later during the trial, Dr. Dhir's counsel cross-examined Wilson about the "informed consent." Again, Wilson's counsel did not object and, on redirect, Wilson stated the form was one of many she was given to sign immediately before the endoscopy without sufficient time to read closely. During Dr. Dhir's direct examination, his counsel inquired if patients are asked to sign an "informed consent" form. Wilson's counsel objected on the grounds of relevancy, but the trial court overruled the objection.[1]Further, Dr. Dhir characterized esophageal perforation (tearing) as a "known complication" of esophageal dilation.

         After all the evidence had been presented, Wilson's counsel requested a withdrawal instruction to remove "informed consent to the esophageal dilation" and discussion about eosinophilic esophagitis (a condition, referred to as "EoE, " in which the person experiences an allergic reaction to food, which can cause inflammation of the esophagus) from the jury's consideration. The trial court seemed to agree at first that informed consent was a false issue but said it did not think a withdrawal instruction was warranted because Wilson had failed to timely object:

[WILSON'S COUNSEL]: I certainly think that informed consent is a false issue that will confuse the jury, and this EoE is a false issue because she never had it, and there's no evidence to the contrary.
THE COURT: I agree. And I don't know why parties insisted on inquiring about it and injecting it into the case, only to suggest the Court's going to err by not instructing that it be withdrawn from the case.

         But the court later indicated confusion as to whether informed consent was an issue:

[WILSON'S COUNSEL]: As to the issue of informed consent, we'd have to put on causation evidence. There is no causation evidence offered from either side where the lack of informed consent caused or contributed to cause this [in]jury. There is no -- there's been no causation. You can't let the jury decide an issue that goes nowhere, and it goes nowhere.
THE COURT: Then you all don't have to argue it. The whole thing is here, your client was injured by virtue of a procedure that the doctor did that he should not have done and of which she would not have approved if she had known about it. That sounds like consent to me. The Court has marked Exhibits A and B. 34.02 respectively withdrawn -- or refused to be given.

         The trial court refused the instruction, and the case was submitted on the theory Dr. Dhir was negligent in performing the empiric dilation. Dr. Dhir's counsel stated in closing argument that Wilson "was aware and she agreed that there was a possibility that Dr. Dhir might do a dilation upon her" and ...

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