jury instruction in a medical negligence claim based on an alleged lack of informed consent should be a general professional duty instruction

In a recent 2-1 decision (see it here) by Chief Judge Glenn Acree, the Kentucky Court of Appeals held in Horsley v. Smith that the jury instruction in a medical negligence claim based on an alleged lack of informed consent should be a general professional duty instruction and not a separate instruction outlining specific legal duties relating to informed consent. The opinion also analyzed at length the language and legislative history of the Kentucky informed consent statute, KRS 304.40-320, and held that it did not affirmatively impose a duty on a physician, but rather created a “safe harbor,” compliance with which should absolve the physician from liability for an alleged lack of informed consent.

Interestingly, the jury in Horsley was instructed by the trial court that the defendant physician had initially lied at his deposition about not having sent an anonymous pre-suit mailing to the plaintiff recounting instances where physicians countersued lawyers for filing unsuccessful malpractice claims. The doctor later came clean and was sanctioned and fined by the trial court. He still won at trial.

Even more interesting is the fact that the Horsley decision openly disagrees with a 2012 Court of Appeals decision (Oghia v. Hollan) that was authored by current Justice Michelle Keller when she was on the Court of Appeals. Horsley also states (correctly) in a footnote that a 1992 informed consent opinion of the Kentucky Supreme Court “errantly” described the nature of the informed consent duty as being based on a community versus a national standard.

The opinion was designated for publication in the South Western Reporter but is not yet final as there is currently pending a petition for rehearing. Once that petition is ruled on, the losing party has a right to seek discretionary review by the Kentucky Supreme Court.

David Kramer is a Partner in the law firm of Dressman Benzinger LaVelle, with offices in Cincinnati, Ohio, Crestview Hills, Kentucky, and Louisville, Kentucky

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