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Informed consent and deviation from the standard of care are distinguishable and represent independent duties.

October 1, 2017
Ehrlich v. Sorokin, M.D., 2017 N.J.Super. LEXIS 114 (Decided July 25, 2017

The plaintiff appealed a jury verdict in favor of the defendant in a malpractice action against her gastroenterologist. At trial, the plaintiff contended her gastroenterologist was negligent in the performance of a colonoscopy. On appeal, the plaintiff argued the trial court erred when permitting the defendant to introduce evidence of signed consent forms indicating the procedure could result in injury and hospitalization. She argued this was not an informed consent case, but one of a deviation from the standard of care, because the doctor did not correctly perform the procedure.

The Appellate Panel reversed and remanded. In a detailed opinion, the Panel explained the difference between the two main theories of medical negligence: lack of informed consent and deviation from the standard of care. As this case did not involve informed consent, admission of such evidence could mislead the jury and was irrelevant. The Panel flatly rejected the defense argument that such information was relevant to counter testimony that the defendant failed to give the plaintiff information about her condition and treatment.

For practitioners this is a significant decision that cordons off (often defense-friendly) language in informed consent forms when the case only involves alleged deviations from the standard of care. The case should serve as a reminder that these two theories are distinguishable and represent independent duties. Therefore, documents that may be helpful could be subject to exclusion if not precisely related to a cause of action.


Case Law Alerts, 4th Quarter, October 2017 Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2017 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.

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